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AGENDA REPORT 2012 1219 CCSA REG ITEM 08A
ITEM 8.A. < ,.-•.4.t`'.3 d'%e!Cf` rn e.=dP Sr �Tw4��Y��'.a... City Council Meeting of MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: David A. Bobardt, Community Development Director DATE: December 6, 2012 (CC Meeting of 12/19/2012) SUBJECT: Consider Ordinance Terminating Development Agreement No. 1998- 04 Adopted by Ordinance No. 250 and Consider Adopting Development Agreement No. 2012-01 by and between the City of Moorpark and A-B Properties for Approximately 34.53 Acres, North of the Union Pacific Railroad Right-of-Way, West of Gabbert Road BACKGROUND On April 18, 2012, the City Council directed the Planning Commission to study, hold a public hearing, and provide a recommendation on an Amendment to a Development Agreement between the City and A-13 Properties for Approximately 34.53 Acres, North of the Union Pacific Railroad Right-of-Way, West of Gabbert Road. The intent of the Amendment was to address the impact on the original Development Agreement of a Settlement Agreement between A-B Properties, SCE, and the Hitch Ranch owners related to access rights to the property from Gabbert Road. On July 24, 2012, the Planning Commission considered a draft Ordinance amending the Development Agreement and recommended its approval. The City Council opened a public hearing on this item on October 3, 2012 and continued the matter with the public hearing open to November 7, 2012. On November 7, 2012, the City Council continued this matter further to December 5, 2012 with the public hearing still open. Since the Planning Commission meeting, the proposed ordinance amending the Development Agreement has been re-formatted into a complete new Development Agreement for ease of future use. Approval of the attached ordinance would terminate the prior Development Agreement with the adoption of the new agreement. DISCUSSION On December 16, 1998, the Moorpark City Council adopted Resolution No. 98-1556, Ordinance No. 249, and Ordinance No. 250 amending the General Plan land use designation from Agricultural (AG-1) to Medium Industrial (1-2), amending the Zoning 1 Honorable City Council December 19, 2012 Page 2 Map from Agricultural Exclusive (AE) to Limited Industrial (M-2), and approving two development agreements, one with A-B Properties on approximately 34.53 acres, and one with Southern California Edison (SCE) on approximately 8.79 acres of land, both west of Gabbert Road and north of the Union Pacific railroad right-of-way. A copy of the Development Agreement with A-B Properties is attached as Attachment No. 1. A Tentative Tract Map 5147 was approved by the City Council for a 17-industrial lot subdivision on the A-B Properties land on March 15, 2000. All Los Angeles Avenue Area of Contribution fees were paid on September 28, 2006, and a Final Map was recorded on August 20, 2007 for this subdivision. A copy of the Final Map, including a location map, is attached as Attachment No. 2. A dispute arose between SCE and A-B Properties when the developer of the A-B Properties land wanted to grade an access road from Gabbert Road to Tract 5147 on a 2001 easement they obtained on the adjacent Hitch Ranch property. That easement was recorded on top of an exclusive easement already held by SCE since 1963. In October, 2007, A-B Properties sued SCE to enforce their access easement. A Settlement Agreement between A-B Properties, SCE, and the Hitch Ranch owners resolved this lawsuit. The terms of the Settlement Agreement, in summary, allow for A- B Properties to construct and use an access road on the SCE property (conveyed in fee to SCE as part of the settlement) for up to 40 years. Additional terms and restrictions call for this access road to be no more than 32 feet wide, not interfering with any SCE electrical transmission, have a slope drain no more than 3 feet wide, and provide truck driveway access to SCE's 3 high voltage power poles. The Settlement Agreement also calls for a new access road to replace this access road, restricting the original access road to be for emergency access only once a new access road is built. Finally, after 8 years, A-B Properties would be responsible for a $125,000 per year use fee on the access road if it is still needed for primary access. A copy of the Settlement Agreement, with Exhibits 5 (Road, Slope, and Drain Easement) Exhibit 6 (Utility Easement), and Exhibit 7 (Promissory Note) is attached as Attachment No. 3. A separate Settlement Agreement between the City and SCE led to action by the City Council in July 2011 to terminate the SCE Development Agreement and rezone the 8.79-acre SCE property back to Agricultural Exclusive (A-E) zoning in place prior to approval of the two Development Agreements. The draft new Development Agreement is provided in legislative format (Attachment No. 4, Exhibit A) showing text changes to the Development Agreement adopted by Ordinance No. 250. If a new ordinance is introduced, the legislative format would be removed prior to second reading. Changes include the following: • Updated Park and Air Quality Fee Sections 6.3 and 6.7 to reflect current Development Agreement language and to be easier to administer on a project that will be constructed one lot at a time. SACommunity Development\DEV PMTS\T T M\5147 A-B Properties\DA\Staff Reports\CC 20121219 Rpt DA Adoption.docx 2 Honorable City Council December 19, 2012 Page 3 • Updated dedication requirements in Section 6.10 for the future North Hills Parkway (formerly SR-118 bypass), reducing the right-of-way width of east-west section from 120 feet to 100 feet from this property. • Updated access improvement requirements for Gabbert Road and North Hills Parkway in Sections 6.19, 6.21, and 6.22 to be consistent with the Settlement Agreement and the intent of the terms of the original agreement. • Updated section on participation in an assessment district for the construction of North Hills Parkway. • Refund of funds collected to process lot line adjustments. • Allowance for crushing material on site to be used as recycled base for interior private streets. • Provides for reimbursement for improvements that benefit other projects • Provision of new term of the Development Agreement to be 20 years from the new operative date, or until the last fees of the final building permit have been paid, whichever comes last. Since the Planning Commission considered this Ordinance on July 24, 2012, staff has made additional changes to the recommended Amendment to the Development Agreement as follows: • Draft amendments have been reformatted into a new development agreement. Non-substantive reference and minor updated language changes have been made as part of this reformatting. • Development Fee in Section 6.4, originally recommended to the Planning Commission to be updated to be consistent with the fee used in recent agreements and to take effect upon the date in which the original agreement would have expired, now would take effect after completion of 40% of the development. • Citywide Traffic Fee in Section 6.5, originally recommended to the Planning Commission to be updated to be consistent with the fee used in recent agreements and to take effect upon the date in which the original agreement would have expired, is no longer recommended to be updated, with the exception of the name of the price index, which has been updated to use the current index name. • Recommendations to Section 6.19 have been amended to focus on improvements to North Hills Parkway along the project frontage and Gabbert Road from Poindexter Road to a point 125 feet north of the railroad right-of-way. Improvements on North Hills Parkway between Gabbert Road and the project site and improvements on Gabbert Road between the point 125 feet north of the railroad right-of-way and North Hills Parkway, if made by the Developer, would be limited to the provision of a 32-foot wide roadway. • Recommendations for Section 6.20 have been amended to now require an Implementation Plan since this will be a phased development project. SACommunity Development\DEV PMTS\T T M\5147 A-B Properties\DA\Staff Reports=20121219 Rpt DA Adoption.docx 3 Honorable City Council December 19, 2012 Page 4 • Recommendations to Section 6.22 have been amended to change the timing of the creation of the funding mechanism and description of the improvements to be consistent with Section 6.19. • Section 7.6 has been amended to allow for stockpiling and up to four crushing operations to recognize the development as a phased development. The stockpiling would be for recycled road base material and is estimated to require approximately one acre of the site for a five-foot high stockpile. • Section 7.8 has been added to allow the developer to proceed with the construction of the North Hills Parkway railroad undercrossing in the event the City does not initiate this project prior to the issuance of a building permit for any portion of the property that would exceed 70% of the acreage of the total of all developable lots. • Sections 11.3, 11.4, 28. and 31. have been amended to include updated language on violation notices, remedies the Implementation Plan requirement, and attorneys' fees consistent with recent development agreements. • The term of the agreement in Section 19 has been amended to cover the entire construction period. Procedures for adopting, amending, or terminating a Development Agreement are established in Section 15.40.120 of the Moorpark Municipal Code, which require adoption of an ordinance by City Council after public hearings by the Planning Commission and City Council. In this case, the prior Development Agreement is proposed to be terminated by mutual consent and a new Development Agreement is proposed to be adopted. A new Tentative Tract Map has been filed by the developer to be considered at a future meeting of the Planning Commission and City Council to be consistent with the terms of the draft Development Agreement and the Settlement Agreement. It is anticipated that this item will be scheduled for Planning Commission and City Council consideration in early 2013. STAFF RECOMMENDATION 1. Continue to accept public testimony and close the public hearing. 2. Introduce Ordinance No. , amending a Development Agreement with A-B Properties, for first reading, waive full reading, and schedule second reading and adoption for January 16, 2013. ATTACHMENTS: 1. Signed Development Agreement 2. Final Map for Tract 5147 3. Settlement Agreement between A-B Properties, SCE, and Hitch Ranch Owners with Exhibits 5, 6, and 7 4. Draft Ordinance No. SACommunity Development\DEV PMTS\T T M\5147 A-B Properties\DA\Staff Reports\CC 20121219 Rpt DA Adoption.docx 4 r Ree®rd$ng Requested By And When Recorded. Return toe CITY CLERk CITY OF MOORPARK 1,99 Moorpark .4,irenus Moorpark, California 93021 EXEMPT FROM RECORDER,S PRA S Pursuant to government Code .6.103 DEVELOP AGREET EY AND EETwEEN THE CITY OF MOORPARK A A-E PROPERTIES THIS AGREENEUr SHALL .BE RECORDED WITHIN TEN DAYS OF MMCMIG7 DY ALL PARTIES xERZT0 SUXff TO THE REQUIREM VTS OF GO EM81EET CODE §65868.5 I • ritVMV%A-8 Properties Agre-W= 11396.7 CC ATTACHMENT 1 4 DEgpEg �,}T f This Development Agreement ("the Agreement") is made end entered into this day of , by and be and the CITY OP '� A°a °" v 19 MOORPARK, a municipal corporation, (referred to hereinafter as "City") and A-B Properties a California General Partnership(referred to hereinafter as "Developer") . City Developer are referred to hereinafter z�adividualgly as eapart y and collectsl7ely as "Parties. ,, In consideration of the � ��d covenants and agreement°s contained in this Agreement, Cit � al Developer agree as followse y ; --Id 1 Recitals, This Agreement Is wade with respect to the following facts and for the -following purposes, each of whthe is acknowledged as true and correct by the Parties 1. 1 . Pursuant to Government Code section 65864 et sue. axid Moorpark Municipal Code chapter 15.407 City :Ls authorized to enter into a binding contractuaLl agreement with any person having a legal or equitable interest in real property within the City for the development of such property in order to establish certainty in the development process. 1.2 . [INTENTIONALLY LEFT BLANK] 1.3 . Developer is owner in fee simple of certain real property in the City of Moorpark, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated, herein by this reference (the "Property") . 1 .4 . City has approved, or is in the process of approving, General Plan Amendment No. 97-2 ("GP")and Zone Change No. 97-6 (,,ZC") , (The GP and ZC, are collectively referred to as the "Project Approvals By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Apprairals and this Agreement. In consideration thereof; City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1 . 6. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon A-8 PROPERTIES AGRCENW, 11398.7 -2- 6 C the development of the Property pursuant to the Project Approvals, this Agreement and any Subsequent Approval s (as defined in Section 5.3 of this Agreement) and to provide the public benefits and improvements specified in this Agreement. 1.7 . City and Developer acknowledge and agree that t he consideration that is to be exchanged pursuant to th. .Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of as amended by General Plan Amendment No.97-6. a I. B . On November 9, 1998, the Planning commission of Ci tv commenced a duly noticed public hearing on than Agreement and at the conclusion of the heariri recommended approval of the Agreement. 1. 9. On November 16, 1998, the City Council of City (,,City Council") commenced a duly noticed public hearing an this Agreement which was continued to December 2, 1995, and at the conclusion of the hearing approved the Agreement by Ordinance . Noes 298 ("the Enabling Ordinance") 2. Property Subject To This Agreement.' All of the Property shall Fe subject to this Agreement- The Property may be referred to hereinafter as "the site,, or The Project area". Binding Effect. The burdens of this Agreement are banding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever. the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project area that has been fully developed in accordance with the Project Approvals and this Agreement.'. 1 Constructive Notice and Acceptance. Every persona who Zc res any right, title or interest in or to a,-I portion of the Property in which the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such pers©n acquired such right, title or interest. 3 .2. Release Upon Transfer. Upon the sale or transfer of the Developers interest in any portion of the Property, 'that Developer shall be released from its obligations with respect to the portion so sold or :.•8 PRAPERTZES AGREEMENT 1=398,7 -3- 7 transferred subsequgnt to the effective date of tkne sale or transfer, provided that the Developer W was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer-' delivers to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferr`d portion of the Property. Failure to provide a writhe assumption agreement hereunder shall not negate, nlodif„- or otherwise affect the liability of. the purchaser 0 - transferee pursuant to this Agreement. Nothin contained herein shall be deeded to grant to c ty discretion to approve or deny any such sale ob transfer, except as otherwise expressly provided s this Agreement. 4 Development of the PrO ert - The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by this Agreement 4.2. Buildin Stasndards. All construction on the Propert- shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the ° National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing- Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes") . �. Vesting of Development Rights. 5 °1° Timing of Development. in Pardee Construction Co. v° City of Camarillo, 3T Ca1.3d 465 (198 the Calgforrzia Supreme Court held that the failure of the parries therein to provide for the timing or rate of development resulted in a later-adopted . initiative restricting the rate of development* to prevail against the parties, agreement. City and Developer intend to avoid the result in Pardee by ackeowledging and providing that Developer shall have the! right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. A-H PROpaTl S AC;RSLq&tVr 1-698.7 -4- G - In fuktherance of the Parties, intent, as set forth, in - _this section, no future amendment of any existing C Ltyr ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development' phases, whether adopted or imposed by the City Council or through the initiative or referendua, process, shall apply to the Property. In particular, but without limiting any. of the foregoing, no numerical restriction shall be placed on the number of building units that can be built each year within the project Area. However, nothing in this section shall be construed to limit City's right t;, insure that Developer timely provides all infrastructure required by the project Approvai Subsequent Approvals and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion .of the Property, unless the Developer has agreed in writing to the amendment. 5.3. .Issuance of—SS.ubse ent Approvals Applications for land use approvals, entitle�ents and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps) , subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans) , encroachment permits, and sewer and water connections that are necessary to or desirable for the development of- the Project (collectively "the Subsequent Approvals10; individually "a Subsequent P shall be consistent with the Project t Approval } shall Agreement< for p j Approvals and this Approvals do not include building Agreement, Subsequent permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, Policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is 'deemed complete by City in City,s sole A-8 PROPCRTLES AGREEMENT 11398.7 -5- 9 Q discretion(collectively "City Laws") , except City Laws that: (a) change any permitted or conditional Permitted uses of the Property from what is allowed by the Prc)j.z-ct Approvals or this Agreement; (b) limit or control the rate, timing, phasing sequencing of the approval, development or construc-tic, of all or any part of the Project in any man nez-, provided that all infrastructure required to serve the portion of the Property covered by the Subsequelit Approval is in place or is scheduled to be in Prior to completion of construction; (c) are not uniformly applied on a City-wide basis t,, all substantially similar types of development projects or to all properties with similar land use designations; or (d) control commercial rents. 5.4. Term of Subsequent Approvals. The term of any tentative i5a—p for the Property, or any portion thereof, shall expire eight Wyears after its approval or conditional approval or upon the expiration or earlier terminatior, of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code section 66410 et seq. , or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final Map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map, shall be one-year;'provided that the term may be extended by the decision maker for two (2) additional One (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent -Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City,s Building Inspector prior to the expiration of that Approval. PA(*ERTXES AC:PEVENT 11398.7 -6- 10 It is understood by City and Developer that certain - Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this agreement, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5 .5. Modification of Approvals. Throughout the term of t.:Ls 1�1 ree«ernt.. the developer shall have the right, at _;is election and without -risk to anY right that is vested in it pursuant to this section, to apply to City for minor modifications to project Approvals and Subsequent Approvals. The approval or conditional approval of ar such minor modification shall not require an amendytlz Yt to this Agreement, Provided that, in addition to a rly other findings that may be required in order to appro�,re or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement. 5.6. Issuance of Suildin Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to Completion of construction and all of the other relevant provisions of the project Approvals, Subsequent Approvals and this Agreement have been satisfied. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. S .7. ,Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the.moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6 .1 . The Developer shall comply with (i ) this Agreement, (ii) the project Approvals, and (iii) all Subsequent A-2 PROPERTIES AGREEMENT 11748.7 _''_ 1A Approvals for which it was the applicant or a success,,,, in interest to the applicant. 6.2. All lands and interests in land dedicated to City shaa_1 be free and clear of liens and encumbrances other thin easements or restrictions that do not preclude Interfere with use of the land or interest fo r intended purpose, as reasonably determined by City its 6. 3 . As a condition of the issuance of each bulUdir a Developer shall pay City -cj fee to be used for pax-k improvements within the Ci Y Of Moorpark. The amourl.- Of the fee shall be twenty-6i five cents 0.25) Der squares foot Of gross -floor area. The fee shall be adjusted annually (commencing One (1) year after the firs� building permit is issued within the Project Area b"_ y any increase in the Consumer Price Index (cpj) until all fees have been paid. The CP1 increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Loa Angeles/Anaheim/Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the Development Agreement is approved by the City. Council (e.g. , if approval occurs in June, then the month of February is used to calculate the increase) . This fee may be expended by City in its sole and unfettered discretion. As A condition of the issuance of each building permt for any use within the boundaries of the Project Areai, Developer shall pay City a development fee as described herein (the "Development Feel') . The Development Pee may be expended by City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Development Fee shall be Twenty One Thousand-Dollars ($21,0oo.00) per acre of each lot on which the building is located. The fee shall be adjusted annually (commencing one (3.) first building permit ear after the mit is issued within the Project Area by any increase in the Consumer price Index (CPI) until all fees have been paid. The CP1 increase' shall be determined by using the information provided by the U.S. Department of labor, Bureau of Labor Statistics, for all urban consumers within the Las Angeles/Anaheim/Riverside metropolitan area during the Prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the Development Agreement is approved by the city 'Council (e-g- , if approval occurs in June, then the 's AGREEMEW 11399.7 month of February is used to calculate the increase) -RTZL 12 6.5. As a condition of the issuance of each building Perrnit for any use within the boundaries of the Project Ax a a, Developer shall pay City a traffic mitigation fee as described herein ("Citywide Traffic Pee") . s he Citywide Traffic Pee may be expended by City in s sole and unfettered discretion. On the effective date of this Agreement, the amount of the Citywide 'gaff iv Fee shall be Eighteen Thousand Dollars ($18,0oo.00) per acre of each lot on which the use is locate-d, Commencing on January 1, 2001, and annually thereafter:, the Citywide Traffic Pee shall be increased to reflect the change in the State Highway Did Price Index for the twelve (12) month per-iod that is reported in the later SQL issue of the Engineering News Record that is available. on December 31 of the preceding year ("annual indexing") . In the event there is a decrease in the referenced Index for any annual indexing, the Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement 6. 7. Developer agrees to pay Air Quality Fees, that are to be calculated by City at its sole and unfettered discretion consistent with similar projects in the City as a condition on each Subsequent Approval within the boundaries of the Project Area_ The Air Quality Fees may be expended by City in fits sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air duality impacts. e.6. Developer agrees to cast affirmative ballots for the formation of an assessment district a* nd levying of assessments, for the maintenance of parkway and median landscaping, street lighting and if requested by the City Council, parks for the provision of specil benefits conferred by same upon properties within the Project. Developer further agrees to form one or more Property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. R-S PILOPEF;TSES AGREEMNT 11398.7 -9- 13 In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and Processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are riot limited to Police Facilities Feesi Fire Facilities Fees, Library Facilities Fees, entitlement proces fees, and plan check and permit fees for buildings, and public improvements. Developer further agrees th., unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operate,e date of this Agreement and such future fees imposed as determined by city in its sole and discretion so Long - UnzL attered as said fee is imposed On similarly situated properties. Prior to City Council action on any Subse quent , occurs Approval, or grading of the Property whicheVer first, Developer agrees to provide City an irrevocable offer of dedication to dedicate right-of-way at no cost to City for the future 118 bypass along the entire length of the north side of the property, along the east side of the Gabbert Channel, and a connector with a radius as determined by the 'City at its sole arid unfettered discretion. The right-of-way shall be one hundred and twenty feet .(1201 ) wide along the north side of the property (east-west section) and oxne hundred feet (100" ) along the east side of the channel (north-south section) plus any necessary slope easements to accommodate a level right-of-way of the required width and slope easements to accommodate a grade separation crossing of the railroad tracks along the southern boundary. Developer further agrees to dedicate access rights from the.property to the City for the 118 bypass except for no more then one (1) approved intersection with -public streets. h f leave final approval City shall the location, legal description and use of the property offered for dedications city may transfer its interest in the Dropertv acceptance of its dedication after entity. n to an'-,- other public Developer agrees that as part Of any grading of the property the right-of-way for the f shall be graded per City direction. ut4- ure 116 bypass 6012 . Developer agrees to comply with all the provisions of the Hillside Management ordinance (Chapter 17.38 of the Municipal Code) of the City, A-8 PROPERTIES WRgMqWT 11398.7 _10- 14 6.13. Developer agrees to pay a pro-rata share, as determined by the City at its sole and unfettered discretion, for the funding and construction of the improvements identified in the Gabbert and Walnut Canyon Channel_, Deficiency Study. Developer also acknowledges that ir!teri'm improvements may also be necessary to facilitate any new use or development of the property and Developer agrees that they shall be responsible for any such interim improvements as their sale responsibility,, vaithout credit of these costs, except as may be provided in the implementation plan for the Gabbert and Walnut Canyon Channels Deficiency Study, 6. 14. Prior .t® any subdivision or new use of the property, Developer agrees to acquire and construct, at thei -r sole cost, dedicatee) public access to the properties , as approved by the City Council. Secondary access tO comply with City and public safety requirements shall also be provided at their sole cost. 6. 16. Developer agrees to not oppose creation of o redevelopment Project Area (as defined by applicable State law) encompassing any part of the Property provided that the Project Area is consistent with the- rights of Developer under this Agreement. 6 . 16. Developer agrees not to request any concession, waiver, modification or reduction of any fee, , regulation, requirement, policy or standard condition for any Subsequent Approval and further agrees to pay all fees imposed by City for future buildings, so long as said fees are also imposed in a similar manner on similar projects. 6 . 17. Developer shall grant, in a form acceptable to City, a conservation easement to retain that portion of the Property west of and including the Gabbert Canyon drain in a predominantly open space condition consistent with Civil Code Section 816 et seq. , except for the f011014i.ng Purposes.: temporary construction (including temporary pumping needed for dewartering as part of any approved grading operations for the Property) , landscape maintenance of manufactured slope areas, vegetation clearance within two hundred (200) feet of any structure for fire hazard reduction, revegetation and biological habitat enhancement required by. City consistent with any Mitigation Monitoring Program, drainage conveyance, emergency access and extension of State Route 118. No excavation, drilling, extraction, Pumping (excluding such pumping as may be needed for dewatering as part of approved grading operations) , mining, or similar activity shall be allowed in any 7.•8 PROPERTIES AGREEKENT 11390.7 -11- 15 14 - -- Portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easement. TI-1e foregoing does not restrict the extraction of subsurface mineral resources by drilling from off the Property so long as the drilling apparatus ar±d equipment are screened from view from all points wit an-d the City. Further: if the drilling site is not witk=gin the City, Developer agrees that before proceeding with any dri114.rg it shall secure a lase permit from the City. which may include conditions ordinarily placed upon drilling opertations.. Further, noise impac'es from pon drilling shall meet the saute noise standards as placed on Indust—ria1 Plaaned Develop*Ria"t .Permits and there shall be no visible evidence or impacts on the ground surface of the Property: The conservation easement shall be recorded concurrently with the recordation of the first final subdivision :nap for the Property. 6.18. Prior to the effective date of the Ordinance approving Zone Change No. 97-6, Developer shall execute in favor of City and record in the Office of the County Recorder of the County of Ventura a Covenant Running with the Land (Covenant) as set forth in Exhibit "B'° attached hereto and -incorporated herein to limit use of the Property. 6.19. Developer agrees that as a condition of the City's approval of the first Subsequent Approval for the Property, Developer shall submit improvement plans to improve Gabbert Road from the Union Pacific Gabbert Road rail crossing to a point approximately one hundred twenty-five (125) feet north of the rail crossing to four travel lanes, two eight (S) foot bike lanes and two ten (10) foot parkways inclusive of sidewalks (Gabbert Road improvements) . The plans for the Gabbert Road improvements must be approved by the City and a surety in an amount and form determined by the City in its sole and unfettered discretion to guarantee this improvement shall be Provided prior to approval of the first final dap for the property occurring after the operative date of this Agreement. The Gabbert Road improvements shall be constructed prior to issuance of a building permit for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all lots created by the recordation of the first final map for the Property occurring after the operative date of this Agreement In the event the Improvements required pursuant to Section 6.22 of this Agreement A-B BROPERYIES t4ftEEMFRr 11399.7 -12- 16 are constructed, accepted by the City and open to the -- - Public prior to the issuance of a building permit for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all lots created by the recordation of the first final map f o rt the Property occurring after the operative date of this Agreement, then the arprovements required by this Section 6.19 shall not he regp?ired to be constructed by the Developer. 6.20. Prior to City action on the first Subsequent Approval for the Property, Developer shall provide a traffic study to determine if signalization of the intersection of the Gabbert Road/Poindexter AVenjje 4 needed. . Developer agrees that City at its sole and unfettered discretion may condition any Subsequent Approval of the Property to construct the traffic signal or pay a fair share payment at the above intersection. Construction of the signal, if required, shall occur at the same time as the Gabbert Road improvements in Section 6.19, above, or such later date as determined by the City Council at its sole and unfettered discretion. 6 .29. Developer shall construct a thirty-two (32) foot wide paved access road (paved access road) to the Property to serve as the primary access until such time as the Improvements referenced in Section 6. 22 are constructed. At such time as the Improvements in Section 6.22 are opened to the public, the paved access road shall become an emergency access. only for the Property. The paved access road shall be located generally following the existing unpaved access road to the Property with the final location of said paired access road to be determined by the City at its sole and unfettered discretion. The paved access road shall be constructed to City Standards for an .industrial street but with no requirement for curb, gutter, or sidewalk except curbs that may be determined necessary to provide for positive drainage. = .22 . Prior to issuance of a building permit for any portion of the Property that exceeds seventy percent (70%) of the acreage of the total of all lots created by the recordation of the first final Map for the Property occurring after the operative date of this Agreement, Developer shall cause to be constructed a street extending north from Los Angeles Avenue (SR 118) including an underground crossing of the Union Pacific railroad tracks to a point approximately six hundred. (600) feet north of :..R PROPS-TrLES AGREEMENT 31398.7 -13= i 17 1� said railroad tracks (Improvements) within the area of the offer of dedication required of Developer in Section 6.10 of this Agreement. The preliminary improvement plans dust be approved by the City and a surety in an amount and form determined by the Citl> in its sole and unfettered discretion to guarantee, the Improvements shall be provided prior to approval of the first final map for the property occurring after the operative date of this Agreement. Prior to issuance of a building permit for any portion oc the property that exceeds forty percent (40%) of ti-le acreage of the total of all sots created by the recordation of the first final reap for the Property occurring after the operative date of this Agreement, City must approve' in it sole and unfettered discretion the final design plans and specifications for the Improvements and a financing plan that demonstrates the ability to fund the Improvements. This financing plan may include at City's sole and unfettered discretion, use of Citywide Traffic monies. 7. City Agreements. 7.1 . City shall use its best efforts to process lan checking and related processing for the project in an expedited nan ner. 7.2 . City shall, exempt this project brom payment of the Gabbert Road/Casey Road Area of Construction (AOC) fees. 7.3 . City agrees that upon receipt of a landowners, petition by developer and Developer's payment of a fee as determined necessary by City in its sole and unfettered discretion, City shall commence proceedings to form a Mello-Roos Community Facilities Distract ("District") and to incur bonded indebtedness to finance all or Portions of the on site and off site public facilities, infrastructure and services that are required by this Agreement and Subsequent Approvals and that ma,%f be provided pursuant to the Mello-Roos Community Facilities Act of 1982 (the "Acts') ; provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and/or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The formation, type of assessment district (if City determines another type of assessment district other than District is more A•B PROPERTIES AGREEMEBIT 11798.7 -14- r 18 17 appropriate) and method and spread of assessment sty-,l1 be at the City's sole and unfettered discretion. 7.4. If requested in writing by Developer and limited to City's legal authority, City shall proceed to acquir-e at Developer's sole cost and expense, easements or f c title to land in which Developer does not have title ©r interest in - order to allow construction of pub! i v improvements required of Developer which are outside Developer's legal boundaries. The process sha, 1 generally follow Government Code Section 66457 et. sega and shall include the obligation of Developer to enter into an agreement with City, guarantee by cash deposits and other security as the City may require, to pay a 1I City cosies including but not limited to, acquisition o f the interest, attorney fees, appraisal fee s� engineering fees, and City overhead expenses of fifteen percent (15°x) on all out-of-pocket costs and City staff costs. 6. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified ox- suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City in it s sole and unfettered discretion. 9. Demonstration of Good Faith Com Hance. in order to ascertair1 compliance by the Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of the Developer hereunder or render this Agreement invalid or void.. 10. Luthori, ed Delays, Perforniance by any Party of its obligations hereunder, other than payment of fees, axed Developer's obligations and restrictions on development as Provided for in Sections 6.19, 6.20, 6.21 and 6 .22 of this Agreement shall he excused during any period of"Excusable DelayR, as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has' been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of A-B PROPEB.TIES AGRELFRENT 11199.7 19 materials or supplies; (e) damage to work in progress by reason, of fire, flood, earthquake or other casualty; ( f) failure, delay or inability of City to provide adequate leve is of public services, facilities or infrastructure to the Property including, by way'of example only, the lack of wat,,r to serve any portion of the Property due to drought, (g) delay caused by a restriction imposed, or mandated by a governmental entity other than City; or (h) litigatibn brought by a Ln, party attacking the validity of this Agreement, a pr" ;-- Approval, a Subsequent Approval or any other action ?�ece )lest for development of the Property 11 i?efault Provisions. Default by 22ITlo era The Developer shall be deemed o have breached this Agreement if it (a) practices, or attempts to practice, any fraud o r deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or ' the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is�a final adjudication adverse to Developers or (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from city to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach vlithin such time limit and diligently effect such cure thereafter. 11.2 . Default by City. City shall be deemed in breach of this Agreement if its (a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (lo) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach A-8 PROPERTIES AGREEMMT 11398.1 -16- 20 ,4 - within the time set forth in the notice, City falls to - commence to cure the breach within such time limit and diligently effect such cure thereafter. 11 . 3. Content of Notice of Violation. Every notice o violation shall state with specificity that it is giver,f pursuant to this section of the Agreement, the natur-e, of the alleged breach, and the manner Jr, which ,t-he breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personall�. delivered or on the third day following the day after it is deposited its the United States mail, accordance with Section 20 hereof. 1± Remedies' for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of thi.a Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore,, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City shall be injunctive relief and/or specific performance. The remedies for breach of the Agreement by the Developer shall be injunctive relief and/or specific performance. in addition_, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.4 or 6.S or 6.9 or 6.10 or 6.19, or 6.20, or 6.21, or 6.22 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of `violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against the Developer if it violates any City ordinance or state statute. 12 . Mortgage Protection. At the same time that City gives rictice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on. the Portion of the Property in which Developer has a legal iriterest ("Financier") , provided that the Financier has given Prior written notice of its name. and mailing address to city A-8 PROPERTIES AGREEMENT 11398.1 y 7 1 I 21 20 -- and the notice takes specific reference to this section.. The copies shall be sent by United States mail, registered 0 . certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant t.c this section shall have the right, at its option and insofar as the rights of City are concerned., to cure any such breach within fifteen (15) days after the :receipt of the notice froa, City. if such breach cannot be cured within such time period the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein, Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, anv Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force acid effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, .a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by Ci ty staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, Provided that any such appeal shall be filed with the City Clerk of 'City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of A-B PROPERTIES AGREEMM 11398.7 1 F t 22 01 any staff decision without first having exhausted its remedies - pursuant to this section. 15• Amendment or Termination by Mutual Consent. In accordarLee with the provisions of Ordinance No, 59 of City or a- successor thereof then in efi`ect, this Agreement may be amended or terminated, in whole or in part by mutrial cons�.,n,t of City and the Developer', 15 - 1. _fxemptio_n for Amendments of Project °vva s. amendment to a Project an 3 Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment L-ecomes effective provided that the amendment is consistent with this' Agreement. 36. Indemnification. The Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attacl,-a review, set aside, void or annul this Agreement or any Provision thereof or the Project Approvals or any Subsequent Approvals. 17. Time of Essence. Time is of the essence for each provision of EYES Agreement of which time is an element . 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19° Term. Thos Agreement shall remain in full, force and effect far a tern of twenty (20' years commencing on its operative date unless said tense is amended or the Agreement ?�, Sooner as otherwise provided herein. upon expiration of the term or earlier termination of this kgreament, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable lams. _ 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed A-8 BROeERTIES AGREEMENT 13]98.7 -19- 23 22 received when personally delivered or upon the third (3rd) a after deposit in the United States mail; registered Qr certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to t�e other, designate .a different address which shall !me substi substituted for the one above specified. 21. Entire �r ement. This Agreement contains the ent i:,:,e agreement between the Parties regarding the subject -Lnat t., hereof, and all prior agreements or understandings; oral Britten, are hereby merged herein. This Agreement shall -r1c t be amended, except as expressly provided herein. 22 . Waiver. Too waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or n®t similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall he representative of the Party, binding, unless it is executed in writing by a duly authorized against whom enforcement of t waiver is sought. he 23 . Severability. if any provision of this Agreement is determined by a court of competent jurisdiction to be irniralid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered iVractical to perform, taking into consideration the purposes of this Agreement. 24 . Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries, This Agreement is L-iiade ai-d entered into for the sole tnenefit of the parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of A regiment and,Amendments. This Agreement and any amendment thereof shall be recorded with the Coulity Recorder of the County of Ventura by the City Clerk of city within the period required by Ordinance No. 59 of City or any successor thereof then in effect. =.-B PROPERT;ES AGREFMp2" 11399.7 -20- 24 27. _Cooperation Between City and Develo aers. City and each ---- Developer shall execute and deliver to the other all such other and further instruments and documents as may �e necessary to carry out the purposes of this Agreement. 28• Rules of Constructions The captions and headings of t�_` various sections and ubsections of this Agreement are f®r 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 thl Agreement be folmd to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provisio of this Agreement shall prevail. 9. Joint Pre aratione 'This Agreement shall be deemed to have. been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 20. Governing Law and venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement; Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31- Attorneys' fees under this section shall include attorneys' fees on any appeal and any post-judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 32 . Counterparts, This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. -B PROPERTIES AGREEMEn 11348,7 -21- 25 9,1 IN WITNESS MMRROF, A-B Properties and City of ajqoorpark have each executed this Development Agreement on the date first above writtan. CIT- P , is Hunt da r r e�s ATTEST o o °oo Deborah Se Traff steclt City Clark Bp JVd A-B Properties By Stephen R. An. General Partner By: Paul Do urns General Partner A•8 EROPERTIE$AGREEMEn 11398.9 -22- 26 CALIFORNIA BALL-PURPOSE ACKNOWLE®GIMENT State®f e AL ed�� #vlA county Of KFAIT"0,12A° On /:Z-/5--99 before rune VeD 01.E DATE NAME.TITS '—ltj 9'��• �®F OFFICER-E.G_,°J�PlE ObE.N@FAR7 flUhlt.l� per$Onaily appeared AJ.D a © r,1 NpAAE15}OF S(G(VErd(Sj perS-cnail�, k aoQr n to rns - On m D �� S�b�cribed tc the within irlStrt�rfae�t aid .�c� ®wledged t� � that h d $he Se�6 bra hiSf °r authoriZed J t�apacitys)c and that by his/ P COR'Willill 174M I1DT Signature(h) on the instrument the persol z Ni Pbill- or the entity upon behalf of which the W .�Augl92Wt m per5®n( � acted, executed the instrttMent. WITNESS my hand and Official Seal. NATURE OF Niel OPTIONAL Though the data bellow is not required by law,it may prove valuable to persons retying on the document and could prevent fraudulent reattachment of this forms CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ INDIVIDUAL ❑ CORPORATE OFFICER s� TITLE OR TYPE OF DOCUMENT PARTNF-Ns) ❑ UMITED ❑ GENEPAL ❑ ATTORWY� Irvl-FACT NUMBER OE PAGES ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTIER: DATE OF DOCUMENT SIGNER IS REPRESING- _ aF�ERSOwts�ow€N1RYpES) ��0��12aI�$ i'll 17 , &MAS SIGNER(S)OTHER THAN NAMED ABOVE l 91993 NATIONAL NOTARY ASSOCIATION-8236 Reii Ave,P.O.Box 9984•Canoga Park,C^91309-.71S4 27 26 CALIFORNIA ALL-PURPOSE ACKNOWYILEDGME T 11;11111110 1111111 110 pol 11:11' �.SSW State of CA�e County of VFW -VR - ®n 2-15--?L? before me. °— DATE NAN1F,TITLE OF OFPICEPI-Ea.°dAA4E 00E.fVOTARe PUBUC' PWSO sally appeared —_ fi,,90L- Z_ 6.vAi, per ®Ifally knvmn to rna = '-OR - ® ra subscribed t� Yhld within il�str�fi�ent ��� ac� Osl��wlet�gl9l� t� �e that he/ e�®�uted the same in his/ r authorized c 2l)acity(4s), and that by his/ r JUDYWSSMAN signature(A) an the instrument the pers®n(o, COMR99im#114M or the entity upon behalf ®f which the E persontil acted, executed the instrument. MVCWMI51;ftAug19,2W WITNESS my hand and official seal. j§IGNATURE OF N0TARY OPTIONAL Though the data below is not rewired by law,it may prove valuable to pemons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT ❑ IIN®IVIDUAI- ® CORPORATE OFFICER mss TITLE OR TYPE OF O®CuME NT PARTNER(S) 13 LIMITED El GENERAL �y 0 0 TRUST E(S)N-FACT iNUMBEl OF PAOESQ ® TRUSTEE(S) GUAROIAWCONSERVATOR Q OTHER: DATE OF DOCUMENT SIGNER IS REPRESSING: UWE OF (S7 OR EPfrliv{TES} �.A¢/E6!/�'��i!/3�e�a5'OeiJ 4 b PiROPVZTI E5 57 SIGNER(S)OTHER THAN 1 AmED ABOVE 01993 NATIONAL NOTARY ASSOCIATM a 823$A mmet Ave.,P.O.San 7184 a Cana Park.Ca • - 91303-51s4 28 opK C• Q MOORPARK - 799 Moorpark Avenue Moorpark,Cafi$omia 93o2i (605)529_6as4 _ 4>¢0 STATE of CALIFORNIA) On this .16th day of December in the year 1993, before me Deborah So Traffenstedt, City Clerk of the City of Moorpa�k, California, personally appeared Patrick Hunter, personally known to me to be the person who -executed this instrument as the Mayor of the City of Moorpark and acknowledged to me that the City executed Witness my hand and official Seal G 2 Deborah S. Traffen dt City Clerk p'o � 4 °9 q w 4pEa ,dv pA4 ndOlt kIEJI►97ER CIi6U SY'OPHER€VAINS CLINT D.HARPEPi ! Mayor Mayor pro Terri LINT Dlmember DEI�®IE RODGERS JOHN E.WOZNI,AK Councilmember Councilmernber 29 28 EXHIBIT A LEGAL DESCRIPTION Part of Sli-bdivision -,ILI' as the same is designated and deli e Upon that certain map entitled, "Map of the !ands of Rancho LS.4 in the Ventura and Los -kngeles Counties, Cal ifornia-'7 , and -s-ardec, in the office of the County Recorder of Ventura County, in boo?L-1 Of Miscellaneous Records (Maps) at page -1 and particy21;jr- described as: West one half of the Southeast one quarter of section six (6) i'l Township two (2) North of Ranch nineteen (19) West, a*s the. same is designated and delineated upon the above described map. EXCEPTING the interest in that certain parcel of land, containinq 3 .118 acres, as conveyed by 'H.C. Estes et al. , to Southern Pacific Railrood Company, by deed dated October 6, 1899 and recorded in the Office of the County Recorder of said County of•Ventura Counter, an book 62 of deeds at page 6 et seq. ALSO EXCEPT the interest and/or land 'conveyed to the Southern California Edison Company in deed recorded March 22, 1968 in book 3280 Page 326 Of Official Records. ALSO EXCEPTING THEREFROM that portion thereof as conveyed to Bugle Boy Industries in a deed recorded December s, 1990 as Document no 90-179525 of Official Records. END OF IjEG-AL DESCRIPTION (A-Iso identified as Assessor,s Parcel No. 50000-340-225) TA--1 A-B PROPERTIES AGREEMEM 30 nn URIBIT B COVENANT RM'WING WITH THE LAM THIS Co to is niadL- this day of between the Zk-s Properties-.-and Southe by azid Company :Fn'CalifOriniZ Edi_,,-,j (COVenantors-',.1 Z nk d. the v City o f ('Coeliantae.'-') WHEREAS, Covenantor is the Ow-l'.er Of certain real propert, -(500-0.340022 and 23) in the V 'Itur&, more particularly C'tY --If HOOrpark, county og el ularly described hereto and made a part hereof In Exhibit -A- attached ("the Covenantor property.) , and WHEREAS, Covenantee is the owner of certain real property at 799 Moorpark Avenue, in the Ventura, City Of Moorpark, County of more particularly described in Exhibit uB" hereto and made 'a part hereof ("the Covenantor Property,,) ; aattached rid WHEREAS, Covenantee is willing to rezone the Covenantor Property from Agricultural - Ex clusiv 'e (M . (AE) to Limited Industrial -2) but for the concern that some of the uses that are Presently, or may-subsequently be, allowed by - or permit in the CPD zone are, or may be, -right inappropriate us., for the Covenantor Property because of its -particular location Covenantor seeks to have the Covenantors Property rezoned from Agricultural Exclusive (AE) to Limited Industrial (M-2) but acknowledges that some of the uses that are presently, or may subsequently be, allowed by right or permit in the M-2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; and NOW, THEREFORE, in consideration of the mutual promises parties to this Covenant, each to the other as Covenantor and Covenantee, and expressly ©f the their 'successojrs for the benefit of, and to bind, in interest, the parties agree as follows: A-B PROPERTIES AGREEMENT 31 1. Covenantee agrees to adopt an ordinance rezonin the Covenantor Property f 9 rom Agricultural Exclusive (AE) Limited Industrial (M-2) to 2. Covenantor agrees that, commencing on the effective date of the ordinance rezoning Agricult the Covenantor Pro pertv ural Exclusive (AE) to Limited I - Subject to the f011Oviing restrict,_- Industr-1-al (M-- superseding tn addition,superseding tine -2 regulations. ar:d A. Primary uses, except agricultural crows, conducted within shall k-.e buildings shall n completely enclosed buildings and metal fac:c-,d storage and operations not be allowed as Principal buildi ' _rations ngs, outside only accessor - shall not be allowed as y Ou Primary uses , tside storage shall be allowed, subject t. the same limitations as M-1 (confined to the area to the rear Of the principal building or the rear two-thirds of Property, whichever is more restrictive the , and screened frc), view from any Property line by appropriate walls, fe * earth mounds, Or landscaping) . ncirig, The following uses shall not be allowed as a Primary .. Manufacturing - Batteries use Manufacturing - Metal industries, and extruding primary; Rolling, drawing, Manufacturing - Rubber and Plastics i products Manufacturing - Tire retreading and recapping n Manufacturing - Cement, coc Mini-storage- rete and plaster products Recreational vehicle storage Signs - Freestanding Off-site advertising signs Transportation services - Truck storage, overnight 3 . Covenantor and Covenantee agree that, commencing on the effective date of the Ordinance -rezoning -the Covenantor Property from Agricultural Industrial (M-2)', all uses Exclusive (AR) to Limited specified in Paragraph 2.B. here6f that are presently allowed or that at a J ny time in the future may be allowed in the m-2 (Lim-ited Industr* ial) zone, whether by right or by permit, shall be deemed transferred ansfearred from the be-tiefit of the Property to the Covenantee the Covenantee Property. tee PrOPertY for the 4 . Covenantors and Covenantee agree that from time to time Covenantee may substitute any other property Covenantee on the date Of .the Owned by Property (uthe Substitute Covenantee for the Covenantee venantee Propertym) without th consent of Covenantor by the recordation of an amendment to e B-2 32 this Covenant. The amendment shall describe the Substitcu t` - Covenantee Property and shall provide that, cor"Mencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof that are presently allowed, or that at any time in the future may be allowed, in the M-2 (Limited Industrial) zone, whether by right or by Permit, shall -)e deemed transferred from that Covenantor Property to Substitute the Covenantee Property for the benef;t of tg-�e Substitute Covenantee Property. All of the covenants, restrictions, and limitations set forth herein shall run with the Covenantee Property and --�Ie Covenantor Property and shall benefit and bind all persoL' iahether natural or legal, havisn or ac title, or interest in an g acquiring any rig��tf y portion of the Covenant Proper;_.zj or the Covenantor Property. Each grantee of a conveyance o- purchaser under a contract of sale or similar instrument that covets any right, title, or interest in or to any portion of the Covenantee Property or the Covenantor Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefited by, all of the covenants, restrictions and limitations set forth herein. 6. Nothing in this Covenant shall be construed so as to limit the right of Covenantee to rezone, or the right of Covenantor to Petition Covenantee to rezone, the Covenantor Property in the future. 7° This Covenant shall remain in full force and effect until such time as an ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2) to another zone designation becomes effective. This Covenant may be enforced b equity against any person who violates or attempts toaviolate a covenant, restriction or limitation hereof. The prevailing Party shah be entitled .to recover such attorneys, fees and c'our't costs as it reasonably incurs in such a proceeding, 9. pn the c-vent an be �` y provision of flies Covenant as found to �zvalid or unenforceable ift any proceeding at law or in equity, such finding shall not affect the other provisions og this Covenant, which shall retain in full force and effect . B-3 33 Either party may record in the office of the Recorder of Ventura County this Covenant or any amendment hereto specif i�d in paragraph 4 hereof without the consent of the other part e IN WITNESS WHEREOF, Covenantor and Covenantee have executed Covenant on the date first above written -B OPER`I'IES �`L'� CF K B-4 34 CALIFORNIA ALL-PURPOSE ACIZNOWLIE®0M NT State of eALi Aar - -- COWY Of YEW7—Ugh- On before mete, ���D BTAnE �r'P�� ✓���3t�r"" � G� aauwE.TiZ!g®Ff7FFIGE�!•PcCa.,°IAWE ME.P9®TARY PUBL C. Personally appeared T 5 HIE ff F66 AAlbE SO&,l personally kngW a to me 9 'r-IR 4 � . .L. sl�bact'ihed t® tl�e t�ithira instrurl�e�t aid ao� ����ledged to �e that be exe��ted the same in his/ r authorized capaoitY{les), and that by hiss JWY Signature(A) on the instrument the person(pjr COMMIWM#t8 M or the entity upon behalf of Which the i9MVC0mMEVW6AQ79'Z6I �t 0 person ) acted, executed the instrument. W1 hand and official se61. P s10� �EOFA10TARv --�� OPTIONAL Though the data below is not required by law,it may prove Valuable to persons relying on the document and could prSvent Fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ® INDIVI®t1AL DESCRIPTION OF ATTACHED DOCUMENT ® CORPORATE OFFICER ef isD TtTIE OR TIPPE OF�OCUIVIENT PAFrrNER(S) ® I IMOTE0 ® GENERA ® ATr�3R�JEY-IN-FACT C3 `rRUIST€E(S) NUMBER OF PAGES ® GUARDW111CONSERVATOR ® OTHER: DATE OF DOCUMENT TRIER IS REPRESENn too QF PEi�OWDsj qA Er•R71vpES} �b P D��Ra°t Agol- '. 'eu,eNS SIGI 11(S)®THEW T}i�Iy n AHED ABOVE 01993 NAPONAL NOTARV SSSt;>; -naly a a=Rommel Avg..P.O.8-7104- ^e9e PAL CA 91309•79tA 35 OALMORNIA AL1,PURPO,9E ACKNOWLEDGMENT fro.ssaa StatO Of—QLd A®A County of 1fk_M7-0 A- On F before me, JUDY Personally appeared aan� OF s+�ratrZ9� PC-Fso rally known to me - OR ni o � , sub��rib�l� t® the wi#hip ifas#rl�r���t algid .��� IQr��wle�I�OeI� t® �� that h Iyx���t� the safe in hisl d r authorized caPacity s), and that by hiss a signature(A) on the instrument the POrson(g)r z Or the entity uP0n behalf Of which the * "AMI soot Persono acted, exec ated the irastrurinent. WITNESS my hard and official seal. W-MT9IRE0FN0TAItY OPTIONAL Though the data below is net required by law, may prove valuable to persons relying®n the document and could prey fraudulent rGa tachrrlent of this form. document ant CAPACITY CLAIMED 8 SIGNER DESCRIPTION QE ATTACHE El D DOCUMENT IMIVI®fly ❑ CORPORATE OFFICER t� TITLE OR'l RPE OF OCtdPgE ; A PA's 3TNEn(S) ❑ LPP+rmo ❑ GENERAL ❑ Arr E-014-FA:CT r ❑ TRUSTEE(S) NUMBER OF PAGES -- ❑ GUARDIAIWCONSERVATOR ® OTHER- DATE OF DOCUMENT SIGNER IS REPRESENTING: c€aIS3 ow�rl�sl Pe� -A/JOAAtDL--jQS®e, SIGNER($)OTHER THAN NAMED ABOVE ®9393 NATION NOTARY ASSCOATION a 5236 Rommel Ave..P O.Bolt 71@4 e C^t yd l'e,w CA 91309.71 84 36 Pqs e O MOORPARK 7-99 McOrparkAvenue °m Moorpark,Car�oraa 2� (8 05)52965��s �a STATE of CAT gp0p�f��� CQDNTa OF VENTUP-k b as. On this 16th day of December in the year 1098 Deborah S. Traffe�nstedt, city Clerk of the Cit of M000ge �� California, Personally appeared Patrick Hurnter, y Moorpark, the t0 y the per5®%1 wh0 executed this instrument�asn the Mayo o f the City of Moorpark and acknowledged to me that the City executed it. Witness my hand and Official Seal Sm Deborah Se Tr«ffe City Clerk edt �9 ®O 4 4Pgo eye. Anayar CLtA1T D.H4APEA DE880E FiO�GEAs AAayor Pro T®m Coue�c�'Ir � J�HRI�.WOg�yl,� Councflmember �©a�ncilrrar�ber 37 -ir �IaI2 r To City= City Of Noor ark 799 koorpark avenue Moo-Cpa£k. CA »3021 kt22. cit\ Manager To De g102e£: k°a properties 4275 Spti2g Road ¥0ozgaz\, c« 93021 ATTU: Stephen R. Anderson C.l . 38 SOUTHERLY LINE OF LOT 60 OF THE SOUTHERLY LINE OF LOT 52 OF THE O1 SOUTHERLY LINE OF LOT 64 OF THE 15 VALLETTE TRACT PER MAP RECORDED 15 14 VALLETTE TRACT PER MAP RECORDED IN 13 0 1 VALLETtE 1R C4 PER MAP RECORDED IN- PAGE SOUTHERLY LINE OF LOT 56 OF THE •IN BOOK 3,PAGE 41 �BOOK 3,PAGE 41 VALLETTE TRACT PER MAP RECORDED IN .... ............. ........ BOOK .PAGE. 1 11 BOOK•3.PAGE 41 10 ................. ......... .NBBTi3'BB"W 6890.68'.............. 1313,88' (1313.84FR3) --------- --- 817.19--' ------- 817.18'R3 1317.89' 1320.966' C ) w _-- __- _ 1320,966' MONUMENT NOTES: 19.334.88' .(1934.46'R4) Q FOUND MONUMENT AS NOTED. o []t FD.2"I.P.,TAGGED R.C.E.16643,PER R7. RECORDS REFERENCED. ,� o NORTHERLY LINE OF THE SOUTHEAST RI LOM-7,P.M.B.43 76-77. �. a QUARTER of s£CnDN s,T2UI,R19W, gd •,y RA19CHO SIMI Accost Is PROVI060 02 FD.NTO,ESTABLISHED AT REC. / viT NBB'63'63"W �" DI&T.PER R7. R2 PM 3192,P.M.B,31/60-62. 3p VI i�GRANT DggD RLOOROED qT Q FD.NTG,ESL 0 NE MIDPOINT R3 1R 4081,MR 118/90-88. -v .,C,;} 340.00' m 1 WN411A WBN1Y Afi peFUf46NT 14788 �ffiF g0 k' ON MARDN 1%1989 AND VIpp A GRANT RET14E}3V POINiSINd R4 MAP OF PART OF RANCHO m< •t.J' ro "PO r-Asr-MC J'T FOR , OF:Bq,RCCDRDBD AT YENtURA COUNTY AS Q FD.NTQ,EST.AT RECORD GIST. SIMI SHOWING SURVEY MADE '+� 9 °' 'Pusue Act @SS�O107, CDOCUMeNT 2001:-0017682-00 ON JANUARY IB,2001. GASSE'R2)FROM CENTERLINE OF FOR MR.JOHN E.SMITH °o �, c 1=M GABBERT ROAD AND¢OF LOS ANGELES AVENUE. R5 TRACT 2817-1,MR 83/10-11 F�F�F� i.� ` UTILI'Cf'pl�'QOSES © FD.IY"Ip �N LI OF 1YP IP VIAc'C••f�aHT �6°�sSA Sil, I TAGGED RAE 28382,PER'R2. EASEMENT NOTES, s�yy �✓-^ -r- QR FD.W IP.PER R2,N76'14'87"E 1.20'. Oa EASEMENT TO VENTURA COUNTY p ° Tzecmv�Ae6-T V �' ® FD.MAO NAIL,NO REF.,FITS TIES PER 4CR87. FLOOD CONTROL DISTRICT RECORDED �g w 17 I_�, �OG1fME1•lT r^�""�✓~ 10Bt•23 .8 APRIL 9 1988 AS INST.!18860 IN �� `` ��^- •�74 i ® PD.2"IP,NO REF.ACCEPTED AS 7.OD70606'pp!/NG2�.a BOOK 2!/88,PAGE 450 OF OFFICIAL BEING A POINT ALONG THE¢OF POINDEXTER IS ab a i•;� AVENUE. RECORDS. D �� ��. `•.". 8�U•1,g Rye 7 � 9 FO,1"IP.L83095,PER Rf,NOOTIO'15"E 0.66'. ® EASEMENT TO SOUTHERN CALIFORNIA •` / N 1386 p6 WISON.-RECORDED MARCH 23, ,888 c:. 17 NFYO 0 FD-NTO.,ESTABLISHED BY INTERSECTION. IN BOOK 1390,PAGE 282 OF "ti S;')'• / R£,pORO &Tg1.0O11". 1 _ tai FD.NTO,EST, ON LINE A7 -MIDPOINT p,0d01 2 BY. p OFFICIAL RECORDS. BETWEEN POINTS®AND }" '1 C 1418S' O.R• r;I�+' �• Zv .ate tN�PAGE'526,,,,���gp ® "F'D.2"IP.W/BRASS CAP STAMPED VEN.CO.L.NO REF. ci v^ ' [2 FO.NTO.,ESTABLISHED BY INTERSECTION. ?�� J ^ �'_ ya67'£_ 136 0.4 0 `''�•. .a ,13 I}`� I ppp, if IIP ACCEPTED AS 174"IP WITH TAO STAMPED 16 z 110a chi ® R.C..137 6 PER R3. N Q. GJ m ® FD.4'l IP,PER R3. t'a�`��i`��"'',{a^1 9 � 1-•�' :t�:} 'o o � I Iii -••.'-1�` to � J' "ti;;. �� 1T" AS Uri"IP WITH TAG STAMPED `� 119 ';is• M ® I ST N70.Wt-BK?3280,PIAGE 326 O.R.•R%P� yy GRAPHIC SCALE 5 ® FD.2"IP,LS 2838,PER RB , a o ,� ��1 �i •'�` } B hog oR I- X00,MMERCE AVENUE (�8&Ff2 T '�'+ Mo SOUTHERLY LINE OF L Imn.900 tt M m SECTION 6 T2N,R19W,SBM, RANCHO SIMI ---___-_-_-___-_-_ (3266.27'MdsRt) __-_-_ 1320.296' _ 1320.295 i LOS ANGELES AVENUE 2840.89' (2639.14'R4) 2 6896.88' 3 4 1B SEE DETAIL"A"BELOW __....._.__.-.___. ._,_........ .... ... . ...... IQt�NDAF2Y ESTABLISHMENT 16 5 2D 0 aim now Z o NORTH i LEGEND ° po,ND m r � PACIFIC R'R' A`�' ---¢--- CENTERLINE SOU•11iE1tN BOUNDARY OF THE LAND BEING SU1301MOED g g ------------- EASEMENT DETAIL "A" w $ � TRACT N®m .514` COM ERCE eT. FOUND MONUMENT AS NOTED. AVE. 20. Ipig IN THE CITY OF MOORPARK LOS ANGELES AVE- BASIS Or BEARINGS LAS ANGELES AVENUE ' COUNTY OF MTURA,STATE OF 64UkRNIA THE BEARINGS SHOWN HEREON ARE BASED UPON THE _ �p� 011ING A PORTION OF SUDDIWSION°L,NAP OF THE CENTIRINE OF GABRERT.ROAD AS SHOWN ON PARCEL MAP 2640.68' - `L. ----�—'—'- I LANDS OF RANCHO SIM6 ff FILM IN BOOK 3, 1"°t9DD' 3192 AB FILED II4 BO01<31,PAGES BO-83 OF PARCEL (2639.+ RR6 zo.oD' PAGE 7 of MISOELLANEOU RECORDS OF SAID MAPS,BEING NORTH 00'01'8&"EAST '4�'N8B'69'60"W �BBB.dO' 4 .800 IB COUNTY. OCTOBER 2006 SHEET 3 OF 4*SHEETS CC ATTACHMENT 2 � � 1220.86! LINE TABLE —UNL 139ARING LENGTH LINE 60.00' LI 60.0 DELTA RADIUS LENGTH 5d NORTH HILLS PARKWAY 3 30.0 a -as- goo 3000 3muu Lia :ME I N0000161 anopta" 37.00' 68.311? A 10 Ll 06 1,189-OWSPIN 70.011? 012 43 148 SF 061 SF 50,648 SF 50,649 SF 1 "a' cm— Law N89183 35 w CASTLEBRITE lBt13' 35 8.58' 57S2 STREET(PRIVATE) b IN ASPHALT AT ALL STREET CENTERUNE POINTS OF SEE CUL-DE-SAC L 8"SPIKE&WASHER STAMPED"LS 7734!'TO BE SET FLUSH DETAIL BELOW INTERSECTION.CURVATURE,RADII, AND TERMINATION. f 1'�3 5 12 43,560 SF 13 0 2' IRON PIPE TAGGED "LS 7734"TO BE SET FLUSH AT ALL 43179 SF 5? B UNDARY CORNERS. 6 1.06 AD 1.07 AC .1 1 AC 1 IRON PIPE TAGGED"LS 7734"TO BE SET FLUSH IN DIRT, OR LEAD. TACK&TAG STAMPED-LS 7734- TO BE SET Ui L35 L30 FLUSH IN CONCRETE,OR B"SPIKE&WASHER STAMPED"LS 125 7734" TO BE SET FLUSH IN ASPHALT AT ALL LOT 130.22' 192.90- Na S`Bllw CORNERS. LOT A 160.01, 3 0 TYPE E4 VENTURA COUNTY WELL MONUMENT TO BE SET AT 6.64 AC 43.617 F o ALL CENTERLINE STREET INTERSECTIONS 1.00 ASS S. EASEMENT NOTES 14 17 EASEMENT TO VE14TURA COUNTY FLOOD CONTROL 47,060 SF 16 s 43,884 SF 44.523 DISTRICT,RECORDED APRIL 9, 1965 AS INST. uj 05 te 1.01 AC 1.02 AC 2685ODN BOOK 2768, PAGE 450 OF OFFICIAL al 1.08 AC RECOR S. EASEMENT TO SOUTHERN CALIFORNIA EDISON, 43,701 S, NBO'83'55*W 283.50' RECORDED MARCH 23,1956 IN BOOK 1390,PAGE L-i84.46 1.00 AC '292 OF OFFICIAL RECORDS. EASEMENT TO VENTURA COUNTY WATERWORKS 44,300 SF D STRICT NO.1.FOR ACCESS, WATER PIPELINE 15, 2 SANITARY SEWER PURPOSES OVER ALL grb. PRIVATE STREETS SHOWN ON THIS MAP. 55; LEGEND L"15,74 010 1 ca Nall CENTERLINE wmF BOUNDARY OF THE LAND BEING SUBDIVID D is 1.00 AC IVOR 6 LOT LINES A'eB*43'1 4' Ln2 GENE re: INDICATES THAT DEVELOPMENT ON THIS LOT IS Am 0 SUBJECT TO DEVELOPMENT AGREEMENT CITY A b ORDINANCE NO.280 RECORDED WTH THE AN -N VENTURA COUNTY RECORDER'S OFFICE ON DECEMBER 30.1998 AS INSTRUMENT NO. 98-2335114 AND THE COND17IONS OF APPROVAL FOR TRACT NO.5147 AS APPROVED BY THE 183.87' MOORPARK CITY COUNCIL ON MARCH 15,2000. TRACT No. 5147 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,STATE OF CALIFORNIA )4CASTLEBRITE STREET GRAPHIC SCALE (PRIVATE) 8EING A PDRIION OF SUBDIVISION 1",MAP OF DIL 9a. LANDS OF RANC140 SIMI,AS FILED IN BOOK 3. PAGE 7 OF MISCELLANEOUS RECORDS OF SAID N1315B,89"Vi COUNTY. IN ZMEW DETAIL OCTOBER 2005 SHEET 4 OF 4 SHEETS Lo SETTLEMENT ACRE'E1S'dM AND MUTUAL dJ w L R m•drEASE 2010 ("Settlement Date"), is made by and among.the following parties (collectively�a7the `Parties"l on behalf of each of themselves and all Persons (as defined below)who could claim by and through each of them:A B Properties,a California general partnership("A_B',) Bum-Pacific Construction,Inc.('UPC"),and Paul D.Burns C ums"and,collectively with A°B and BPC,the"Burns Parties"),the Southern California Edison Company("SCE"), and Louis David Bavo, Susan C. Bavo, Richard S. Hambleton, Jr., A. A. Milligan, Jolty R, N illigan (aka. John Reid lfilligan), Kimberley Jeanne Milligan, Marshall C. ►VTaM Michael S.1a lligan,Alan J.Pomato,Allison Jones Pomato,Julia Milligan Summers,Idaho Trust Company,and the Richard H.Jones Ltd.Partnership(collectively the"Flitch with reference to the following facts: RECITALS A. The A B Fee Property. Sometime before March 2000, A B acquired that Property that is now sometimes described as"all of lots 1 through 17 inclusive per Tract No. 5147,as per map recorded in Book 155.page 37,ofMscellaneous Records,in the Office of the County Recorder of Ventura County,"(the"A B Fee Probe ")a A B holds all right,title and interest to the A B Fee Property in fee simple, and no Person(as defined below) other than A-B has any present or future possessory or other interest in the A-B Fee Property or any subdivision thereof ; B. The SCE Pee Property. In about 1967,by grant deed recorded on or about lurch 22, 1965 as number 14755 in book 3250 page 326 of the Ventura County Recorder, SCE acquired the property described in that deed(the"SCE Fee Prope_y"),which is south.ot and adjacent to,the A-B Fee Property. C. The Hitch Ranch Property. With the exception of A.A.Milligan and the Idaho Trust Company, the Hitch Owners, either individually and/or-as trustees of certain trusts, collectively own in fee approximately 253 acres of property located on both sides of Gabbert Road,.north of the Union Pacific right of way, within the limits of the City of Moorpark, California("Moorpark'I that is common v known as Bitch Ranch.(the`TMeh Ranrh'l. West of Gabbert Road,the western portion of the Bitch Ranch borders the eastern portions of the A-B Fee Property and the SCE Fee Property at or about the westerly line of the west half of the southeast quarter of section 6,T2N,RI 9W,Rancho Simi,established at rec'.disc(3256.27 R1)from the westerly line of Rancho Simi. The Ditch Ranch is subject to several exclusive easements in favor of SCE for-electricity transmission, including exclusive easements the Ditch Owners or their predecessors conveyed to SCE by grant deed on or about May 31, 1963 and recorded on or about July 1, 1963 in book 2347 page 225 of the Ventura County Recorder, and grant deed dated on about October 30. 1967 and recorded on or about January 4, 1965 in book 3243 page 379 of the Ventura County Recorder (the "Transmission Easements"). 116169 w^i A-1_1 AC 1M ENT 32 46 41 D. The Lawsuit. On or about October 22,2007,A-B filed a complaint against: SCE in the Ventura County Superior Court,commencing A-B Properties v. Southern California Ecliio_ ,Ventura County Superior Court No. 56-2007-00306094-CUIP-SI M. Throaia—its complaint,A-B sought, among other things,to enforce against SCE certain easement rights within the Transmission Easements that A-B asserted had been conveyed to A-B by the Ditch Owners by grant deed dated September 8, 2000 and recorded with the Ventura County !Recorder on or about January 18, 2001 (the "2001 Deed"). SCE disputed A-B's assertion. On or about December 5,2000, SCE cross-complained against A-B and the Hitch Ovrners in the Lawsuit for declaratory relief,to quiet title and for damages. On or about July 29, 2009 SCE filed and served a motion to amend its cross-complaint (the "Motion to Amend") to, among other things,quiet title to an additional utrecorded easement grant deed dated March 6,2000 from the Hitch Owners to A-B (the"2000 Deed"), and an additional easement g-ant deed from the Hitch Owners to A-B executed on various dates in May 2007 that was recorded with the Ventura County recorder on or about June 5,2007 and June 6, 2007 (the "2007 Deeds"). The Motion to Amend was still pending when the Parties entered into this Agreement. The foregoing action commenced by A-B Properties, including SCE's cross- claims in such action, is hereinafter referred to as the "Lawsuit." E. The Eminent Domain Action. On or about April 21,2008,A-B entered into an "Agreement Regarding Acquisition of Off-Site Property" with Moorpark (the "minent Domain Agreement")pursuant to which,among other things,Moorpark agreed to commence an eminent domain action to acquire an easement for access to the A-B Fee Property, and A- B agreed to reimburse Moorpark for fees and costs of that acquisition. Pursuant to the Eminent Domain Agreement,Moorpark commenced Moorpark v. Milligan et al., Ventura County Superior Court No.56-2008-00331392-CU-EI-SIM(the"Eminent Doma.m Action"), in which Moorpark through eminent domain seeks to acquire from the Hitch Owners and SCE an easement within the Transmission Easements over the same land,or substantially the same land, described in the 2000 Deed, the 2001 Deed and the 2007 Deeds. NOW THEREFORE,in consideration of the foregoing and of the mutual covenants and agreements set forth below,the Parties hereby agree as follows: AGREETM NT 1, Incorporation of Recitals. The recitals set forth above are true, correct, coil-stitute the intent of the Parties and are incorporated herein as part of this Agreement. 2. Additional Definitions. The following terms shall have the following meaning when used in this Agreement: a. Development Agreements."Development A egr ement means the agreement between by and between Moorpark and A-B dated December 16, 1998, together with all amendments thereto,regarding the development of the A-B Fee Property. 116169 42 41 b. Closing. The "Closin " shall be a meeting of all Parties, or their representatives, at 10:00 a.m. on the Closing Date at the offices of Nordman _-Cormany Hair&Compton ILP9 000 Town CenterrDriVe,6tli floor,®xnard, -- California, or some other location agreed upon in writing by all Parties, at or before which the Parties shall deliver and exchange the fully executed Deliverables (as defined below), to the extent and in the manner required below. c. Closing Date. The"Clos'mnD Date"shall_be a date after the E fective Date that is mutually agreed upon by all Parties. d. Effective Dates the "Effective Date" is the date on which this A?,-reer-r ent becomes effective,which shall be the date as of which all Parties have signed this Agreement. e. Permitted Encumbrances. "Permitted Encumbrances" mean any liens or other interests held by SCE, or easements in favor of SCE or the Ventura County Watershed Protection District fka the Ventura County Flood Control District. f Person. "Person" includes any natural person, as well as any other entity, including(but not limited to)corporations,limited liability companies,limited and general partnerships, unincorporated associations, and states, counties, municipal corporations and government agencies, and any subdivisions thereof. 3. Stipulation for Dismissal. Upon execution of this Agreement, the relevant Parties or their counsel shall execute stipulations providing for the dismissal with prejudice, each Party to bear his or its own attorneys'fees and costs of suit, of the Lawsuit("Lawsuit Dismissal Stipulation")and the dismissal without prejudice,each party to bear his,her or its own attorneys' fees and costs of suit, of the Eminent Domain Action ("Eminent Domain Dismissal Stipulation" and, collectively with the Lawsuit Dismissal Stipulation, the "Dismissal Stipulations"),substantially in the forms annexed hereto as Exhibit f and Exhibit 2,respectively. The Burns Parties shall also, as a required term of this Agreemneni, obtain from Moorpark an Eminent Domain Dismissal Stipulation,on the same terms,executed by a duly authorized representative of Moorpark. At or before the Closing, each of the Hitch Owners shall deliver to SCE Dismissal Stipulations executed by all of them (or their counsel), the Burns Parties shall deliver to SCE Dismissal Stipulations executed by all of them (®r their counsel_) and Moorpark(or its counsel), and SCE shall deliver to the Burns Parties and the Hitch Owners Dismissal Stipulations executed by its counsel. 4e Quitclaims A-B, on behalf of itself,it successors and its assigns,relinquishes any and all interests granted to it by the 2000 Deed,the 2001 Deed and the 2007 Deeds. A-B will execute,and at or before the Closing the Burns Parties will deliver to SCE for recording 116169 43 42 with the Ventura County Recorder,a quitclaim deed to and for the benefit of SCE in the form attached hereto as Exhibit 3(the" uitclaim"), extinguishing any rights that may have been _ conveyd yy ee 20®0 Dee, e 200 t Deed and-the-7007-De-e s SS-Cl;sh-a T Ye-c-6 d-the Quitclaim on or before the Closing Date, or as soon thereafter as is practical,in accordance with the provisions herein. 5. Fee Conveyance. Each of the Flitch Owners agrees to convey to SCE al right, title and L aterest ni the real property described in Exhibit A,and depicted in Exhibit B, of the grant deed attached hereto as Exhibit 4 (the"latch Fee Interest"or, after the Fee Grarit(as defined below),the"Transmission Strip"). At the Closing,the Ditch Owners will deliver to SCE for recording with the Ventura County recorder a fully executed fee simple grar?t deed iun the form of Ex1?iibit 4 conveyLng to SCE all right,title and interest to the Hitch Fee L-r terest in fee simple (the "Fee Grant"). SCE shall record the Fee Grant as soon as practical after recording the Quitclaim, and shall pay any documentary transfer tax associated with the recording of the Fee Grant. 6. Easement Conveyances. Subject to,and conditioned upon, SCE's receipt of the fully executed Dismissal Stipulations,the Quitclaim,the Fee Grant,the Note(as defined in section 8c herein)and the First Trust Deed(as defined in section 8c herein)(collectively, the "Cross-defendant Deliverables"), SCE will convey to A-B the following easements subject to the following conditions,terms and restrictions: a. The Access Easement. The Access Easement(also sometimes referred to as the "Road, Slope and Drain Easement") shall be a nonexclusive easement across the Transmission Strip along the path specified in the easement grant deed attached hereto as Exhibit 5(the"Access Easement Deed")for the sole purpose of the certain access rights to the A-B Fee Property specified below and in the Access Easement Deed. The Access Easement will include certain slope easements and drainage structures, but only to the extent and on the conditions specified below. SCE shall record the Access Easement Deed with the Ventura County recorder as soon as practical after recording the Fee Grant. The Access Easement conveyed by the Access Easement Deed shall: (1)be for the sole benefit of the A-B Fee Property; (2)not be severable from the A-B Fee Property; (3) not be appurtenant to any after acquired property; and(4)be subject to the following conditions,terms and restrictions contained iii the Access Easement Deed: i. The only structures permitted within the Access Easement (the "Permitted Structures") shall be (1) a maximum 32-foot wide asphalt paved road(the"Paved Road"); (2) a slope drain(the "Slope Drain") and an inlet structure and riprap (the `Itra:R"); and (3) at least three driveways leading off the Paved road to the unpaved portion of the Transmission Strip (the "Driveways"). 116169 44 43 ii. The Paved Road shall: (1) be a maximum of 32-feet wide at any point; (2) located only in the location indicated on Exhibit B to the Access ---E-asement-Dmd-;-�3-)--n-ot-h-ave-any-si-d-ewalks-,-stre-ettights,landscaping, curbs or any other structure other than the Driveways along its entire length; and (4) otherwise be designed, constructed, utilized and maintained in a manner that neither interferes with nor endangers SCE's operations within the Transmission Strip. iii. The Slope Drain shall: (1)be no wider than three feet,nor deepe-r than six inches, at any point; and (2) only be located to the north of the Paved Road along the toe of the Slope Easements (as defined below), or otherwise within the Access Easement in the location indicated on Exhibit B to Access Easement Deed. The Riprap shall be:(1)no larger than 20 feet by 20 feet; and (2) contiguous to the Paved Road in the location indicated on Exhibit B to the Access Easement Deed. iv. There shall be a minimum ofthree Driveways,which each shall be:(1) constructed and maintained as a quid pro quo for the installation of the Slope Drain (L e., proper installation and maintenance of the three driveways shall be a condition for A-13 to install and maintain the Slope Drain); (2) in the locations indicated on Exhibit B to the Access Easement Deed; (3) a minimum of 28 feet wide, and otherwise accessible for use by SCE's operational equipment;(4)engineered and constructed at a minimum to the guidelines and standards for commercial driveways promulgated and set forth by Moorpark' and(5) blocked to public access by chains that can and shall only be removed by SCE. The Driveways leading north off the Access Road shall cross over and cover the Slope Drain. v. Variable width slope easements ("Slope Easements") shall also be permitted to the extent,on the conditions,and in the locations provided in the Access Easement Deed, including the Exhibits thereto. A. -A-B and its successors and assigns to its interests in the Z'%--B Fee Property shall have sole responsibility for the construction and maintenance of the Slope Easements and each of the Permitted Structures. Aside from SCE's operations, no utilities or any construction other than the Permitted Structures shall be permitted anywhere in the Access Easement. With the sole exception of vehicles engaged in SCE operations, parking shall not be permitted anywhere within the Access Easement and the Transmission Strip. Traffic signs that do not interfere with SCE operations may be posted along the Paved Road where necessary for safety. 116169 45 44 vii. SCE may, at its option, survey the Permitted Structures and Slope Easements after completion of construction to confirm their proper placement—within-the-Access-Easement.—Any portions-of ili6-Perifift-t-ed- Structures and Slope Easements that are not at or within the locations permitted in the Access Easement Deed, including exhibits, shall be relocated by-A-B to at or within those locations. viii. The Public Access Time Period shall commence u i--- pon the recordation of the Access Easement Deed(the"Access Start DateD'). The Public Access Time Period shall terminate upon the earlier of M the construction of road extending from the-A-B Fee Property to Galbbera Road entirely off the Transmission Strip(the"New Access Road",), (2) the construction ofsome other road accessing the A-B Fee Property that- is entirely off the Transmission Strip, or (3) the fortieth (40ffi) anniversary of the Access Easement Start Date. During the Public Access Time Period, the Access Easement shall be used only for vehicular access to and from the A-B Fee Property by emergency or other Moorpark municipal services, and by A-B Fee Property owners and tenants, their customers, suppliers, employees, agents, invitees, guests, and persons performing maintenance or other work on the A-B Fee Property,as well as other members of the public seeking to conduct business on the A-B Fee Property, and shall not be used as a thoroughfare, nor dedicated as a public street or roadway(the"Public Access"). ix. Public Access shall not under any circumstances be permitted in the Access Easement unless and until the Development Agreement has been amended (the "Development Agreement Amendments") to the reasonable satisfaction of SCE to provide that the Improvements referenced in section 6.22 of the Development Agreement shall be the New Access Road. x. In the event that the Public Access Time Period terminates prior to the fortieth (40th) anniversary of the Access Easement Start Date, Emergency Access(as defined in this paragraph),and only Emergency Access, shall be permitted in the Access Easement until the earlier of the(1)the completion of construction of a second access road(e.g., in addition to the New Access Road)that extends from a public road to the A-B Fee Property entirely outside of Transmission Easement, (2) the fortieth(40th)anniversary of the Access Easement Start Date,or(3) December 31,2049(the"Access Easement Termination Date"). From the end of the Public Access Time Period until the Access Easement Termination Date: (1)the Access Easement may be used only by SCE and by Authorized Emergency vehicles as defined in ali C Ifornia 116169 46 Vehicle Code section 165 that need to access the A-B Fee Property. (the 'Tmergenvy Access"); (2)the Access Easement and Paved Road shall -i� -by ga -I�k S e oc -9-eamed f6a-cff"n -locked t6§,;md(3)on - CE and those emergency public entities required by law to have access shall have keys to the locked gates,and A-B or its designated successor shall have one key not to be duplicated. Each of the Bums Parties expressly acknowledges that following the termination of Public Access, no Person shall have any rights of Public Access to -the A-B Fee y Proper'r . anywhere over the Transmission Scrip. Y i. The Access Easement will terminate in its entirety and be extinguished, and all interests previously granted shall revert to and merge into the interest of the fee owner of the Transmission Strip, on the Access Easement Termination Date. Each of the Bums Parties expressly acknowledges that after this forfeiture of the Access Easement, no Person shall have any rights of Public Access,Emergency Access, or any other access to the A-B Fee Property anywhere over the Transmission Strip. xii. Notwithstanding any rights of access granted by the Access Easement SCE reserves at all times the absolute right to access, maintain and repair the transmission towers,power lines and other of its property and equipment within the Transmission Strip, and to close the Paved Road when necessary due to exigent circumstances. xiii. A-B and its successors and assigns to its interests in the A-B, Fee Property shall release SCE from liability for damage to or destruction of any of the Slope Easements or any of the Permitted Structures caused by or arising out of operations conducted by SCE in the Transmission Strip;provided, however,that the foregoing shall not be construed to release SCE from liability for any negligent or willful act of SCE. Am A-B and its successors and assigns to its interests in the A-P, Fee Property shall indemnify and hold SCE harmless from and against any claim or liability for injury to any Person or damage to SCE's property caused by the installation, use and maintenance of any of the Slope Easements or any of the Permitted Structures, except when that injury or damage is caused by the negligence or willful misconduct of SCE. xv. A-B and its successors and assigns to its interests in the A-B Fee Property shall maintain the Access Easement reasonably free of debris and will remove debris from the Transmission Strip upon the request of SCE within a reasonable amount of time. If A-B or its successors and/or assigns 'fail to timely remove any such debris from the 116169 47 ^G Transmission Strip, A-B or its successors and/or assigns shall indemnify SCE for the removal of such debris and any additional harm caused-6y—ifie presence of such debris, xvi. If at any time after the eighth(8b)anniversary of the Access Easement Start Date, SCE determines in its sole discretion that (1) any transmission line(s), towers or any other electricity trans-nj�g equipment need to be added within the Transmission Strip,or(2) any or all existing transmission line(s), towers or any other electricity transmitting equipment need to be reconfigured or relocated to, from Or within the Transmission Strip,those who are interest holders of the A-B Fee Property at the-time of notice of that deter-rnination- shall either: L be jointly and severally liable to pay SCE for any and all incremental costs of any such addition, reconfiguration, or relocation caused by the presence or use of the Permitted Structures and/or the Access Easement; or 2. move,, at their sole expense, any or all of the Permitted Structures to a different location(s)provided that in the opinion of a mutually selected industry expert,the new locati on(s)do(es) not interfere with SCE's operation of its current transmission lines or its plans for added, reconfigured, or relocated transmission lines. xvii. A-B and it successors and assigns to its interests in the A-1B Fee Property shall be solely responsible for the payment of all taxes due on account of the Access Easement. xviii. The terms and conditions governing the Access Easement shall not be modified except in a writing signed by all parties thereto. b. The Utilities Easement. The Utilities Easement shall be a nonexclusive easement along the path specified in the easement grant deed attached hereto as Exhibit 6 (the 'jaiDAy Easement Deed" and, together with the Access Easement Deed, the "Easement Grant Deeds") appurtenant to, and binding upon all successors and assigns to,the A-B Fee Property for the sole purpose of the installation,operation and maintenance of cable,electricity,tel-coni,and fiber optics(the"Da Utilities"),and water,sewer and natural gas utilities(the "Wet Utilities"and, collectively with the Dry utilities,the "Utilities")across the Transmission Strip. SCE shall record the Utilities Easement Deed with the Ventura County Recorder as soon as practical after recording the Fee Grant. The Utilities Easement conveyed by the Utilities Easement Deed shall:(1)be appurtenant to the A-B Fee Property; (2)not be severable from the A-B Fee 116169 48 A" Property; (3) not be appurtenant to any after acquired property, whether contiguous or not,to the A-B Fee Property;and(4)be subject to the conditions ' - i — and restrictions contained in the Utilities Easement Deed, L The Utilities Easement shall commence upon the recordation of the Utilities Easement Deed(the"Utilities Easement Start Date"). i-i. The Utilities shall be permitted in the Utilities Easement frorn the Utilities Easement Start Date until the earlier of(1) the fortieth (40t) anniversary of the Utilities Easement Start Date, (2)when voluntarily relinquished by all the fee interest holders in the A-B Fee Proper-ty, or (3) December 31, 2049 (the "Utilities Easement Termination Date"). M the Utilities Easement Termination Date,the Utilities Easement will terminate in its entirety and be extinguished,and all interests previously granted shall revert to and merge into the interest of the owner of the Transmission Strip. At the Utilities Easement Termination Date, the fee interest holders in the A-B Fee Property shall be jointly and severally liable to remove all Utilities from the Transmission Strip. Should the fee interest holders in the A-B Fee Property fail to remove any Utilities remaining in the Transmission Strip within 30 days after the Utilities Easement Termination Date, SCE may, at its option, remove(without any obligation to relocate, or to pay for the relocation of) any such Utilities at the expense of the interest holders in the A-B Fee Property. iii. SCE will make a good faith effort to expedite A-B's application to SCE for electric utility service to the A-B Fee Property at the commencement of the Utilities Easement. Assuming, and on the condition, that Moorpark and/or other property owner(s) have made available a location outside of the Transmission Strip, or A-B or its successors.in interest have otherwise acquired a right to install all Dry Utilities at a location outside of the Transmission Strip,at or before the Utilities Easement Termination Date, SCE shall at its expense (1) relocate the SCE conduit equipment,cables and electric utility related items to that location, and (2) provide additional conduit to accommodate A-B's other Dry Utilities.at that location. iv. Aside from SCE's operations,no other utilities or construction shall be permitted anywhere in the Utilities Easement other than the Utilities. v. Notwithstanding the rights granted by the Utilities Easement SCE at all times expressly reserves its right to access, maintain and repair its transmission towers, power lines and other of its property and equipment within the Transmission Strip,and to shut down any and all 49 116169 dR Utilities when required due to exigent circumstances. -vi.--A- -and-its successors and assigns to its interests in the A Fee Property shall release SCE from liability for damage to or destruction of the Utilities caused by or arising out of operations conducted by SCE in the Transmission Strip; provided, however,that the foregoing shall not be construed to release SCE from liability for any negligent or wi-MI-I act of SCE. vii. A-B and its successors and assigns to its interests in the A-B Fee Property shall indemnify and hold SCE harmless from and against any claim or liability for injury to any Person or damage to SCE's property caused by the installation, use and maintenance of any of the Utilities, except when that injury or damage is caused by the negligence or willful misconduct of SCE. viii. If at any time after the eighth(81)anniversary of the Utilities Easement Start Date, SCE determines in its sole discretion that (1) any transmission line(s), towers or any other electricity transmitting equipment need to be added within the Transmission Strip,or(2)any or all existing transmission line(s), towers or any other electricity transmitting equipment need to be reconfigured or relocated to, from or within the Transmission Strip,those who are A-B Fee Property interest holders at the time of notice of that determination shall either: 1. be jointly and severally liable to pay SCE for any and all incremental costs of any such addition, reconfiguration, or relocation caused by the presence and/or use of the Utilities and the Utilities Easement; or 2. move, at their sole expense, the Utilities to a different location provided that in the opinion of a mutually selected industry expert the new location does not interfere with SCE's operation of its current transmission lines or its plans added, reconfigured or relocated transmission lines. L-. A-B and its successors and assigns to its interests in the A-B Fee Property shall be solely responsible for the payment of all taxes due on account of the Utilities Easement. The Utilities Easement shall not be modified except in a ti signed x. writing gn by all parties thereto by all parties thereto. c. DocumgntM Transfer Tax. The Bums Parties shall pay any documentary transfer tax associated with the recording of the Easement Grant Deeds. 116169 50 7. Payment by SCE to the Burns Parties. Subject to,and expressly oonditioned upon, SCE's receipt of the Cross-defendant Deliverables, SCE shall deliver to the mourns Parties $-fZ5-,GffO-.O"G(the—"Sbttl-ebi&iif-C-oh§iddffCidn"), which deliver-shall be by-v�,ixe or check made payable to the order of A-B. 8. Annual Use Fees. No fee shall be charged for the use of either the Access Easement or the Utilities Easement from the Access Easement Start Date until the eighffi(8th) anniversary of the Access Easement Start Date. Starting on the eighth anniversary of the Access Easernent Start Date, and on each am i7�7ersary date thereafter that (1) the Access Easement is being used for Public Access, gr (2) the Utilities Easement has not been voluntarily relinquished by all the fee interest holders in the A-B Fee Property,however,A-B shall-pay an annual fee of one hundred twenty five thousand dollars($125,000)(the"Asn-nual Use Fee")to SCE. a. The obligation to pay Annual Use Fees shall be personal to A-B,shall not be part of the Access Easement or the Utilities Easement, and shall not run with the land. Failure to pay the Annual Use Fee when due shall not result in the forfeiture of the Access Easement or the Utilities Easement or any easement rights thereunder. b. All payments of Annual Use Fees shall be by bank check payable to the order of Southern California Edison Company,and shall be made in accordance th w i-1 section On herein. The payment of each Annual Use Fee shall be accompanied by a report that details the status and progress in development of the alternative access routes, including the New Access Road and any other access road then planned or under construction,and utility routes. Such status report shall at a minimum identify any applications for permits,permits issued, plans submitted to government agencies or utilities, any objections that are known to have been made to any alternative routes, and timetables for the completion of alternative access and utility routes. c. To ensure the timely payment of Annual Use Fees,A-B shall execute, deliver and convey to SCE at or before the Closing(1)a non-interest bearing Note 1_11 the face amount of two million dollars($2,000,000),in the form of Exhibit 7 (the"Note"); and(2)a recordable first trust deed in the amount of two million dollars($2,000,000),in the form of Exhibit 8(the"First Trust Deed")on the 87.9 acres or so of property A-B owns that is sometimes known by assessor parcel numbers 511-0-180-110 and 511-0-190-120 in the City of Moorpark (the "North Village Prop erty') securing the Note and granting SCE a first priority lien on the North Village Property in the amount of two.million dollars ($2,000,000), which security is an express condition to SCE's obligation to grant the easements herein. That the Note is in the face amount of two million dollars ($2,000,000) shall in no way explicitly or implicitly cap or otherwise limit A-B's liability for Annual Use Fees,which shall be due and payable in 116169 51 50 accordance with the provisions of this section 8. Pursuant to the terms ®f the Note and First Trust Deed,the failure of A-B to pay any Annual Use Fee when -&e- shall be-an event-of de f4u.lit �,V6 t—cTQ-e f�q-fff') causing the N oie to become due and payable for the entire face amount. In such Event of Default, SCE shall provide notice, in accordance with section 13n herein.- to A-B of such Event of Default. A-B shall have thirty(30)days from the date of notice to cure such Event of Default. If the Event of Default is not cured within thirty (3 0)days of such notice,SCE shall have the absolute right to exercise any and all rights to collect on the Note and foreclose on the First Trust Deed. jil the event that such Event of Default is not cured within thirty(30)days of SCE's Notice of Event of Default,.A-B hereby waives any and all further rights of presentment for payment,demand,protest,notice ofnoa-paym- err�or dishonor and of protest, and any and all other notices and demands whatsoever, and consent that at any time, or from time to time, payment of any sum payable under any Note may be extended without notice, whether for definite or indefinite time. d. An Event of Default shall not relieve A-B of its obligation to pay further Annual Use Fees as they come due; however, any amounts collected by SCE on the Note in excess of the Annual Use Fees due and owing at the time of the Event of Default shall be held by SCE in an interest bearing account,and shall, along with any interest earned, be credited toward such Annual Use Fee obligations as they become due. All such credit amounts remaining upon the later of (1) the termination of the Public-Access Time Period and (2) the removal of all Utilities from the Transmission Strip after the Utilities Easement Termination Date shall be remitted to A-B. e. Upon termination of the later of(1) Public Access pursuant to the Access Easement and(2)the Utilities Easement: i. If the Note is- not then in default the Note shall be cancelled and returned to A-B, and the First Trust Deed shall be extinguished; H. If the Note is then in default A-B shall remain liable for the amount of Annual Use Fee payments that would have been due in the absence of any default and, to the extent that SCE has collected on the Note an amount in excess of the amount of Annual Use Fee -payments that would have been due in the absence of any default, SCE shall refund such excess to A-B. 9. Further Covenants, Representations and Warrantees. a. Each of the Bums Parties represents and warrants that,as of their execution of this Agreement (a)A-B is the sole holder of all right title and interest in fee 116169 52 EA simple of the A-B Fee Property and the North Village Property;(b)the North --Village Property-is-not subject to any liens or other encumbrances, other than Permitted Encumbrances;.and (c) any and 01 licenses, easements and other interests in the Hitch Ranch previously conveyed by the Hitch Owners to any of the Burns Parties have been extinguished, with the sole exception of the easements that purport to have been conveyed in the 2000 Deed, the 2001 Deed and the 2007 Deeds, which easement grants each of the Bums parties and the Hach Owners now relinquish. Each of the Burns Parties fbrther covenants, represents and warrants that neither A-B nor its successor's will quitclaim,assign, transfer, convey or encumber: any interest in the A-D Fee Property or the North Village. Property between its execution of this Agreement and the delivery of the executed Quitclaim and First Trust Deed at the Closing, or, without the advance,written consent of SCE(which consent shall not be unreasonably withheld),any interest in the North Village Property prior to the satisfaction of the Notes and extinguishment of the First Trust Deed. b. Each of the Burns Parties covenants,represents and warrants that they either now have, or will tiniel_y obtain, all consents necessary to carry out their obligations under this Agreement. c. Each of the Burns Parties covenants that they will construct the New Access Road on or before the expiration of the Public Access Time Period. d. Each of the Hitch Owners represents and warrants that,as of their execution of this Agreement, (a) as.tenants in common, the Hitch Owners, and only the Hitch Owners, own the Hitch Fee Interest in fee simple absolute; (b)without duty of investigation or inquiry, none of the Hitch Owners have any actual knowledge of any lien or encumbrance to which the Hitch Fee Interest is subject other than Permitted Encumbrances, water rights, and tax liens or assessments that are disclosed as exceptions to title in that certain Preliminary Title Report issued by Stewart Title of California,Inc.under order no.205868, dated as of July 7, 2010; (c) all taxes and other assessments assessed against the Hitch Fee Interest have been, or will before Closing be,paid through the Closing;and(d)any and all licenses,easements and other interests it the Fitch Fee Interest previously conveyed by the Hitch Owners to any of the Burns Parties have been extinguished,with the sole exception of the easements that purport to have been conveyed in the 2000 Deed,the 2001 Deed and the 2007 Deeds. The Hitch Owners each further covenants,represents and warrants that neither they nor their successors will quitclaim, assign, transfer, convey or encumber any of their interest in the Hitch Fee Interest between the execution of this Agreement and the execution and delivery of the Fee Grant at the Closing, and that the conveyance of the Fee Grant will transfer title of the Bitch Fee interest to SCE free and cleat of any and all encumbrances, except 53 116169 . 52 Permitted Encumbrances. e. SCE represents and warrants that as of its execution of this Agreement., it is the holder of the Transmission Easement. 10. Mutual Releases. a. Releases between the Burns Parties and SCE. in consideration of the M�atual compromises and other agreements set forth herein, and subject to the provisions of Section 11 of this Agreement, each of the Burns Parties, on1 the one hand, and SCE, on the other hand, for themselves and each of -their respective predecessors, successors, heirs and assigns (each, individually, a Releasing Party"),each fully release and forever discharge the other and each of such other Party's respective, as relevant, shareholders, affiliates, parent, boards, directors, officers, employees, agents, representatives, attorneys, spouses,successors,heirs and assigns(each,individually,a"Released Party") from and against all claims, demands, actions, causes of action, liens, judgments,losses,damages, costs,expenses,attorneys' fees,obligations, and liabilities of every nature and kind (collectively, the "Released Claims") whether known or unknown,suspected or unsuspected,vested or contingent, whether in law or in equity,and whether under state or federal law,which each Releasing Party may ever have had,may now have, or may in the future have against any Released Party and which Released Claims concern,arise from,or pertain to(i)the Lawsuit, (ii)the claims and defenses in the Lawsuit, (iii)the disputes that are the subj ect matter of the Lawsuit, or(iv)the Eminent Dornam Action and the claims and.defenses in the Eminent Domain Action;provided, however, that nothing herein shall alter or operate as a release of any obligations created under this Agreement. b. Releases between the ditch Owners and SCE. In consideration of the mutual compromises and other agreements set forth' herein, and subject to the provisions of Section 11 of this Agreement, each of the Flitch Owners, on the one hand, and SCE, on the other hand,- for themselves and each of their respective predecessors, successors, heirs and assigns (each, individually, a 66Releasing Party"), fully release and forever discharge the other and each of such -other Party's respective, as relevant, shareholders, affiliates, parent, boards, directors, officers, employees, agents, representatives, attorneys, spouses,successors,heirs and assigns(each,individually, a"Released Par ') from and against all claims, demands, actions, causes of action, liens, judgments,losses,costs, expenses, attorneys' fees, obligations,and liabilities of every nature and kind(collectively,the"Released Claims")whether known or unknown,suspected or unsuspected,vested or contingent,whether in law or in equity, and which each Releasing Party may ever have had,may now have, or may in the future have against any Released Party and which Released 54 Claims concern, arise from,.or pertain to (i) the Lawsuit, (ii)the claims and defenses in the Lawsuit,-(iii)the disputes that are the-subject matter of the — - Lawsuit,.or(iv)the Eminent Domain Action and the claims and defenses i-n the Eminent Domain Action,provided,however,that nothing herein shall alter or operate as a release of any obligations created under this Agreement. 11: Release of Unknown Claims. It is the intention_ of the Parties that releases contained in this Agreement shall be effective as a full and final accord and satisfaction. and release of the Released Claims,whether or not such claims are presently know-a or unk iowin to the Parties. -„ furtherance thereof, and to the extent California law is applicable to this Agreement or the release provisions hereof, the Parties acknowl_cdge that they are fay�iiar with Section 1542 of the California Civil Code, which provides as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DID NOT KNOW OR SUSPECT TO EXIST. IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,WHICH IF KNOWN BY HINT OR HER,MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. Without expanding the scope -of the _foregoing releases, to the extent that such releases, or any portions thereof, may be construed as being subject to Civil Code Section 1542, the Parties waive any and all rights they have or may have under such section', any successor section to it and any comparable principle of law or equity as may exist in any ,jurisdiction, in connection with the claims released hereby. Specifically, and without limitation, the Parties acknowledge that they are aware that they may hereafter discover claims presently unknown or unsuspected;or facts in addition to or different from those they now know or believe to.be true with respect to the .subject matter of this Agreement. Nevertheless,the Parties intend by this Agreement and with and upon the advice of their own independently selected counsel, to release fully, finally and forever all claims released and discharged under this Agreement. In furtherance of such intention,the releases set forth in this Agreement shall] be, and shall remain in effect, as full and complete releases, notwithstanding the discovery or existence of any such additional or different claims relevant hereto. The releases shall inure to the benefit of the Parties' successors and assigns. 12. Actions upon Occurrence of the Effective Mateo Upon the Effective Date having been reached: each of the Burns Parties shall be obligated to execute and deliver to SCE the Dismissal Stipulations, the Quitclaim, the Note and the Trust Deed to SCE at or before the Closing, and the Hitch Owners shall be obligated to deliver the Fee Grant to SCE at or before the Closing. Upon receipt of the last of the Cross-Defendant Deliverables,SCE shall be obligated to convey the Settlement Consideration,the Access Easement,the Utilities Easement, and to record the Easement Grant Deeds (the"SCE Deliverables" and,together with the Cross-Defendant Deliverables, the "Deliverables"). Subject to and upon SCE's recordation of the Easement Grant Deeds, the releases provided in Section 10 of this 55 116169 rw Agreement shall take full effect. 13. Miscellaneous Provisions. a. warranty of Non-Assignment. Other than Permitted Encumbrances, each. Party to this Agreement represents and warrants that he, she or it has not assigned or in any way conveyed,transferred or encumbered all or any portion of the clam or rights covered by this Agreement. b. Warranty of Authority. Each of the individuals executing this.Agree Ment on behalf of a Party hereto represents and -warrants that he or she is duly authorized to execute this Agseeiaent on behalf of such Party. c. Choice of Law. This Agreement shall be interpreted in accordance with the laws of the State of California without regard to its choice of law provisions. d. Advice of Counsel. Each Party to this Agreement acknowledges that this Agreement has been executed with the consent and on the. advice of independent legal counsel,and each Party knowingly and voluntarily agrees to be bound by the terms of the Agreement. e. Non-waiver provision. No waiver of any of the provisions of this Agreement shall be deemed or shall_ constitute a waiver of any of the other provisions hereof whether or not similar, nor shall such waiver constitute a continuing waiver. f. Further Assurances. Each of the Parties hereto agrees that he, she or it will execute and deliver all such documents and instruments as may be necessary and appropriate to effectuate the terms hereof. . g. Counterparts. This Agreement may be executed in counterparts with the same force and effect as if executed in one complete document by the Parties. Facsimile signatures shall be deemed original signatures for the purpose of the execution of this Agreement. Counsel for each of SCE,the Burns Pa--ties and the Hitch Owners shall deliver to the others by email or fax the signature page for each of their respective clients within three (3) business days of the execution of this Agreement by that client. h. Joint Drafting. This Agreement shall be deemed to have been drafted jointly by the Parties, and shall be so construed. i. Headings. Headings, titles and captions preceding the sections hereof are provided for convenience of reference and shall not be used to explain or to restrict the meaning,purpose or effect of any provision to which they refer. j. Parties to bear own fees and costs. The Parties hereto agree to pay their own 56 116169 costs and attorneys` fees incurred in connection with the Lawsuit and the Eminent Domain Action, -and in connection-with negotiation, drafting and execution of this Agreement and all other matters related thereto or in connection therewith. k. ltegration Clause. This Agreement, together with the exhibits attached hereto, represents the"entire agreement of the Parties concerning the subject matter of this _agreement. There are no oral or written representations, warranties,promises or inducements to this Agreement not set forth herein. 1. Modifications. This Agreement may not be altered, amended, waived, modified or otherwise changed in any respect or particular whatsoever except by written agreement executed by al Parties affected by the alteration, amendment,waiver, modifncation or change. m. Severaba ty and Reformation. If� for any reason, any provision of this Agreement is determined to be invalid or unenforceable, such provision shall . be automatically reformed to embody the essence of that provision to the maximum extent permitted by law, and, unless the invalidity or unenforceability, after reformation, results in- a material failure of consideration,the remaining provisions ofthis Agreement shall be construed, performed and enforced as if the reformed provision had been included in this Agreement at inception. n. Notices and Payments. Any notices or payments required under this Agreement shall be sent to the Parties at the following addresses by FedEx or similar commercial overnight service which provides for a receipt or tracking number,with a copy of the notice or payment simultaneously provided by fax or e-mail to each Party's counsel. Notice shall be deemed given and effective upon sending Party's receipt of notice properly addressed. i. The Bums Parties To Paul D. Burns, Burns Pacific Construction, Inc., 505 Thousand Oaks Boulevard,Thousand Oaks,California,91360,fax no.(805)495- .6014,email address:paul.burnspacific@verizon net;copy to Gaines& Stacey LLP, 16633 Ventura Blvd., Suite 1.220, Encino, California 91436-1872,Attn.Fred Gaines,Esq.,Fax No. (818) 933-0222,e-mail address: fgaines @gaineslaw.com. u. SCE To Southern California Edison Company,2244 Walnut Grove Avenue, E.osemead, California 91770, Attn: Leon Bass, Jr., Esq.; copy to Willenken, Nilson,Loh&Lieb LLP, 70.7 Wilshire Blvd., Suite 3850, 57 Los-Angeles, California 90017,Attn°Jason H. Wilson,Esq.,Fax moo. (213) 955-9250, e-mail address:JasonWilson @Willenken.com. iii. Louis David Bavo, Susan C. Bavo, Richard S.Hambleton, Jr., A.A. Milligan,John R.Milligan(aka John Reid Milligan),Kimberley Jere Milligan,Marshall C.Milligan,Michael S.Milligan,Alan J.Pornato, Allison Jones Pomato,JuliaMilligan Summers,idaho.Trust'Company, and the Richard H.Jones Ltd Partnershib " . To Richard S Hambleton,Hoffman,Nance and Worthington Ine., 1 000 S Seaward Ave..Ventura Calif. 93001_ copy to TTor r nn, Co? Hair & Compton.LLP, 1000 Town Center Drive, 6'h floor, P.O. B©n 9100, Oxnard,California 930319100,attno Michael C.O'Brien,Es q., Fax No. (805)988-838'x,e-mail address:mobriengnchc.com .14. . Disputes. Any and all disputes between or among the Parties-to enforce or interpret the terms of this Agreement shall be resolved before a single arbitrator,to be agreed. . upon by all Parties to the dispute,under the comprehensive rules and procedures of JAMS then in effect. The venue for any arbitration or proceedings to enforce any arbitration award, or any other court proceeding between or among the Parties, shall be in the County of Los Angeles, State of California,.-and all Parties mTressly agree to submit to the personal- Jurisdiction of the courts of California to the extent required for a Party to compel arbitration or to enforce any arbitration award resulting from the foregoing procedures: IN WITNESS WH1EREOF the Parties have executed this Agreement as of the Settlement Date. SOUTHERN CALIFORNIA EDISON COMPANY - "a° -Print Name: Yf al a, Print Tale: APGe1le PW/Y V 116169 58 r� A-B PROPERTIES, a California general partnership. ---- By: ant lame: Paul D. Burns Feint!al General Pa_tner BURNS-PAC:1UIC CONSTRUCTION, INC, By. PrmtName: PI�d _Q(� �� Print Title: /t>g�a r® PAUL D.BURNS LOUIS DAVTID BAVO SUSAN C.BAV® RICHARD S. HANIBLET®N, JR. 59 116169 �o A-E PR.OPERMS,. a Califomia general - partnership-By: Print Name: Prat Title: FINS-PACIFIC CONSTRI CHOIT, 1NC.. By: Print Name: Print Title: PAUL O. BURNS L OA S DA�313AVO SUSAN C. FAVO RICHARD S.HAMBLETON, JR. 60 A-D pR®PERTIES, a California general partnership. - By: piss 1��Ta�e: B U NS-PACIFIC,,cONSTRUC T ION, PJ�C. By: Print Nate: pant Tile: PAUL D.BURNS LOUIS DAB BAVO Cam° SUSAN C. BAVO IC S. �.E1lJ1Vy JAS. 61 �A A-B PROPERTIES, a. Califomia general partnership. Bye Print!,Tame: Print Title: BUMNS-PACIFIC CONSTRUCT-ION, INC. By: Print Name: Print Title: PAUL I3. BURNS L00 '� BAVO SUSAN C. BAST® RICHARD S.HAM. .bLIMN, JR. 62 A,A. IGAfi� By 1ECILPUL S.MILL! or MA.R-SaAT i C.Nf1LUC-AN,'bis attorneys-?n-fact JOHN R. MILLIGAN(aka JOHN REID MILLIGAN) KDvfB FILES.'J� F�TG�1 MARSHALL C. MIl,LIGAN MICHA-ET S. IGAN ALAN J.P®MAT'® 63 62 A.A.NffLLIGAN By 1ivilCR A-EL IS, T\MLIGAN T L C. 1,I�1LLTIOCTA , his attorneys-in-faec JOHN 1� L AN( JOAN REID . L KITYMERLEY JEANNE M LLIGAN MARSHALL C. MILLIGAN MICHAEL S. MILLIGAN ALAN J.POMAT® 64 A.A.NULLICTAN By MICHAEL S.MILLIGi"N or M-0 SILA 4 L C. M LL IG IN, his artomeys-ini -¢ac-t JOIN R. MILLIGAN(alga JOIN REID Mff-LIG KINMERLEY JE 1 MAMHALL C.MILLIGAN CIVET S.T-vnLIGAN ALAN J.POMATO 65 A.A.MILLIGAN By IVFICI�4E-L S. MILLIGAN or M ARSHAI,L C. 1\,,LLIG lN, �1zs attorneys-in-fact JOHN R. MILLIGAN(aka JOHN REI D MILLIGAN) ) _KRvIBF LEY jFAANNE MILLIGAN I��ARS�AT,L C. IV�I,L � WCILA—FL S.MILLIGAN ALAN J. POMAT® 66 A.A.MELLIGA1N By D.&CHAEL S.MILLIGA_N or MARSKA T L C. M�1.ICAN, i„s atto�eys- - ao JOHN R.MILLIGAN(aka JOHN REID MILLIGAN) _KMER�TEY MAC MILLIGAN MARSHALL C.MILLIGAN MTC14AEL S. MILLIGAN '4l�- P®MAT® 67 CC i v s ALLIS ONES POMA1O JULIA MILLIGAN SU-HERS IDAHO'TRUST COWANY By: Print Name: Mat'Title: THE RICI ARD H.JONES LTD PARTNERSHIP By: Print Dame: Pant Title: / 68 ALLISOIN JONES Pfl TC� I S ,s JDAHO TRUST COMPANY By: Pmt Mane: Print'Title: TIE RICHARD H.JONES LTD PARTNERSB By: Print 1 Tame: Pint Title: 69 ----- C 0 ALLISON-JONES POMATO JULIA MILLIGAN SUMMERS EDAHO TRUST ONVANY Prim Name: -W-vvlwA:s 1� 5 � Print Tile: ?4s S, �c�tCC.sgsd(8- ana P��Z�� THE RICHARD H. JONES.LTD PARTNERSHW By. Print Name: Print Title: 70 Approved by: WILENKEN, WILSON, LOH &LIEB LLP By` Jason H. Wilson Attorneys for Souithdrn CaR-f6,°�is E+ise- Company Approved by: OAINES & S l ACEY LLP By: Frild Haines Attorneys for A-B r erties; Burns Paci-fic Construction_, Inc.; and Paul D. Burns Approved by: NORDMAN CORMANY HAIR&CONIPTON LLP By: Michael C. O'Brien Attorneys for Louis David Bavo, Susan C. Bavo,Richard S. Hambleton, Jr.,A.A. Milligan,John R. Milligan(aka John Reid Milligan), Kimberley Jeanne NlilLgan, Marshall C. Milligan,Michael S. Milligan, Alan J. Pomato,Allison Jones Pomato, Julia Milligan Summers, Idaho Trust Company, and the Richard H. Jones Ltd Partnership 71 116169 7A EXHIBIT 5 EXMBrr 5 RECORDING REQUESTED BY _- SOUTHERN CALIFORNIA EDISON COMPANY WHEN RECORDED MAIL TO SOUTHERN CALIFORNIA EDISON COMPANY 14799 Chestnut St-reet, Westminster, Ca. 92683 Attn: Title & Real Estate Services SPADE ABOVE THIS LINE FOR RECORDER'S USE ROAD, GLOPE MM DR&KH MASEMENT DOCUMENTARY TRANSFER TAX$ SER. 68545A Location: Moorpark COMPUTED ON FULL VALUE OF PROPERTY CONVEYED APPROVED A.P.N. 511-0-200-225 NO CONSIDERATION AND VALUE LESS THAN 900.00 SCE LAlfll DEPARTMENT &511-0-200-235 Affects SCE Docs. SO.CALIF.EDISON CO. BY WAM DATE TrV2090 206689&278568 SIGNATURE OF DECLARANT OR AGENT DETERMINING TAX FIRM NAME FOR VALUABLE CONSIDERATION, receipt. of which is hereby acknowledged-, SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, (hereinafter called "Grantor"), does hereby grant to AB PROPERTIES, a California general partnership, (hereinafter called "Grantee" and, together with the Grantor, the "Parties") subject to the terms and conditions stated herein; a non-exclusive easement covering the area described in Exhibit "A" attached hereto, and more particularly depicted on Exhibit `B" attached hereto, both of which exhibits are by this reference made a part hereof, which non-exclusive easement consists and is comprised of a 32.00 foot wide road easement (hereinafter"Road Easement") as depicted on the Exhibit`B" ; an easement for slope purposes (hereinafter"Slope Easement") as depicted on the Exhibit `B"; and an easement for a. slope drain and riprap (hereinafter the "Drain Easement" and, together with the Road Easement and the Slope Easement, the "Road, Slope and Drain Easement"), also as depicted on the Exhibit "B", all in accordance with the terms and conditions stated within the numbered paragraphs below, crossing that certain real property of the Grantor, situated in the County of Ventura, State of California, hereinafter the "Servient Tenement, for the installation., operation and maintenance of an access road, described as follows: Servient Tenement: The East half of the Southeast quarter df Section 6,Township 2 North, Range 19 West, Rancho Simi, in the City of Moorpark, County of Ventura, State of California, as shown on map entitled, Map of the Lands of Rancho Simi, in Ventura and Los Angeles Counties, California, and recorded in Book 3, Page 7 of laps, in the office of the County Recorder of said County, and particularity described as follows: "Beginning at a point in the centerline of that certain public road, 60 feet wide, locally known as and called "Los Angeles Avenue at the comer common to Sections 5,6, 7 and 8 of Township 2 North, Range 19 Nest, Rancho Simi, as shown on the above described map, said 73 Grant of Easement S.C.E., a corporation to A.B.Properties, a Ca. general partnership Serial 68545A Affects SCE Docs: 206689 &278568 point of beginning being the Southwest corner of Tract"Q"as shown on map entitled'Map oy' a Part of Tract "L" of Rancho Simi, Ventura County, California, showing the Township of m oorpark anal Lands of Madeleine R. Poirndexter, a Re-subdivision of Fremont 'Tract" u-ed recorded in Book 5, page 5 of Maps, In the office of the County Recorder of said Ventu-a County; thence,from said point of beginning, 1st: North 2640 feet to the Southeast corner of Lot 56 orvallette Tract, as per Map recorded `22 Book 3, Page 41 of Maps, in the office of the County Recorder of said County; thence, at rig�t angles, 2nd: Test 1320 feet to the Souhl west cornet of said Tot 56 of Valletta Tract, at the Northea t corner of that certain parcel of land conveyed to Mary Frances Estes, by deed dated October 22, 1902 and recorded in Book 87, Page 120 of Deeds; thence, at right angles, 3rd: South 26' 10 feet along the East line of said lands of Mary Frances Estates to a point in the centerline of said Los Angeles Avenue; thence, along same, 4th: East 1320 feet to the point of beginning. Except that portion lying Southerly of the Northerly line of that certain strip 100 feet wide described in the deed to the Southern Pacific Railroad Company, recorded November 13, 1899, in Book 58, Page 596 of Deeds." Commonly known as A.P.N. 511-0-200-225 and 511-0-200-235 SUBJECT TO prior covenants, conditions, restrictions, reservations, exceptions, encumbrances, rights, easements, leases and licenses, affecting the Servient Tenement or any portion thereof, whether of record or not. The foregoing grant is made subject to the following terms and conditions: 1. This Road, Slope and Drain Easement shall be located only where indicated on Exhibit B hereto, and shall be appurtenant to, and for the sole benefit of, that property owned in fee by Grantee described as lots 1 though 17 inclusive of Tract No, 5147, as per map recorded in Book 158. page 37, of Miscellaneous Records, in the Office of the County Recorder of Ventura County, State of California(hereinafter the"Dominant Tenement"), and only that property. It shall be neither severable frog?? the Dominant Tenement nor appurtenant to any after acquired property. 2. The only structures permitted within the Road, Slope and Drain Easement (the "Permitted Structures") shall be: a maximum 32-foot wide asphalt paved road (the "Paved Road"); a maximum three-foot wide, six-inch deep slope drain; a Hprap no larger than 20-feet by 20 feet; and at least three driveways of a minimum 28-feet wide leading Erom the Paved Road to the unpaved portion of the sevient tenement (the "Driveways"}. All Permitted Structures shall be placed only in the locations indicated on Exhibit B thereto. 3. The Paved Road: (1) shall be a maximum of 32-feet wide at any point; (2)located only in the location indicated on Exhibit B; (3) shall not have any sidewalks, curbs, streetlights, landscaping or any other structure other than the Driveways along its 74 Grant of Easement S.C.E.'a corporation to A.B. Properties, a Ca. general partnership Serial 68545A Affects SCE Does: 206689 &278568 entire length; and (4) shall otherwise be designed, constructed, utilized and maintained in a manner that neither interferes with nor endangers Grantor's operations. The Road, Slope and Drain Easement may only be used for the development and maintenance of -the Paved Road. The Paved Road may provide vehicular ingress and egress, subject to the restrictions :herein, over the Servient Tenement to. and from the Dominant Tenement. Traffic signs that do not interfere with SCE operations may be posted alorig the Paged toad -where necessary for safety. 4 The Slope Drain shall: (1) be no wider than three feet, nor deeper than six- i,-iches, at any point; and (2) only be located to the north of the Paved Road along the We of the Slope Easements (as deed below), o_ of eTv?ise :aitbili the Road, Slope grid Drain Easement, in the location indicated on Exhibit B. The Riprap shall be: (1) no lamer than 20 feet by 20 feet; arid (2) contiguous to the Paved Road in the location Lndicated on Exhibit B. 5. There shall be a minimum of three Driveways,which each shall be: (1) constructed and maintained as a quid pro quo for the installation of the Slope Drain (Le., proper installation and maintenance of the three driveways shall be a condition for A-B to install and maintain the Slope Drain); (2) in the locations indicated on Exhibit B to the Access Easement Deed; (3) a minimum of 28 feet wide,and otherwise accessible for use by SCE's operational equipment; (4) engineered and constructed at a minimum to the guidelines and standards for commercial driveways promulgated and set forth by Moorpark; and. (5) blocked to public access by chains that can and shall only be removed by SCE. The Driveways leading north off the Paved Road shall cross over and cover the Slope Drain. 6. Grantee shall have sole responsibility for the construction and maintenance of the Slope .Easement and each of the Permitted Structures. Aside from Grantor's operations, no utilities or any construction other than the Permitted Structures shall be permitted anywhere in the Road, Slope and Drain Easement. With the sole exception of vehicles engaged in Grantor's operations, parking shall not be permitted anywhere within the Road, Slope and Drain Easement. 7. Slope Easement shall only be permitted within the Road, Slope and Drain. Easement, and only to the extent any such Slope Easement is necessary for construction or maintenance of the Paved Road. 8. The Driveways shall be engineered, constructed and maintained in accordance with all applicable guidelines and standards, including the guidelines and standards for commercial driveways promulgated by the City of Moorpark. The Driveways shall be blocked to public access by chains that can and shall only be removed by Grantor. q. Grantee covenants, for itself and its successors and assigns, to construct, operate and maintain the Paved Road, Permitted Structures and Slope Easement at its own expense. Construction, operation and maintenance of the Permitted Structures shall be done without any cost or expense whatsoever to Grantor and, in the event a special assessment or assessments.is or are levied by an authorized lawful body against the real property of Grantor for any of the Permitted Structures, Grantee agrees that it will reimburse Grantor for the full amount of any and all such special assessment or assessments so levied for said Permitted Structures and paid by Grantor. 75 Grant of Easement S.C.E.,a corporation to A.D. Properties, a Ca. general partnership Serial 68545A Affects SCE Docs: 206689 &278568 10.The Public Access Time Period shall be the time period in which the Paved Road may be used for vehicular ingress and egress only to and from the Dominant Tenement("Pubhe Access"). The right to such Public Access shall be limited to the Grantee and tenants holding a leasehold interest in the Dominant Tenement; their respective customers, suppliers and employees; emergency and other City of Moorpark municipal servides, and oply those persons; at no time shall the Paved Road be used as a thoroughfare, nor dedicated as a public street or roadway. Further, in no event - not even during t1,e Public Access Time Period- shall Public Access be permitted in the Paved Road until after Grantee's agreement with the Cibj of Moorpark dated December 16, 1998 for the development of the Dominant Tenerner3t (the 'Development Agreement") has been amended to the reasonable satisfaction of Grantor to provide that the -Improvements referenced in section 6.22 of the Development Agreement shall be a road extending from the A-B Property to Gabbert Road entirely off of the Servient Tenement(the 'New Access Road"). 11.The Public Access Time Period shall commence on the date of the recording of this Road, Slope and Drain Easement (the "Public Access Start-Date"). The Public Access Time Period shall terminate upon the earlier of the completion of the New Access Road or some other road not within the Servient Tenement that provides Public Access to the Dominant Tenement, or the fortieth(40f) anniversary of the Public Access Start Date, 12.In the event that the Public Access Time Period terminates prior to the fortieth (40th) anniversary of the Public Access Start Date, the Road, Slope and Drain Easement and Paved Road may thereafter be used only by Grantor or for access by Authorised Emergency Vehicles as defined in California Vehicle Code section 165 responding to any emergency at the Dominant or Servient Tenement (the 'Emergency Access") until the earlier of the fortieth (401h) anniversary of the Public Access Start Date or the completion of construction of a second access road (e.g., in addition to the New Access Road)that extends from a public road to the Dominant Tenement entirely outside of the Servient Tenement (the 'Road Easement Termination Date.' During this time period between the end of the Public Access Time Period and the Road Easement Termination Date, (1) no Person shall have any right of Public Access to the Dominant Tenement anywhere over the Servient Tenement, and the Road, Slope-and.Brain Easement and Paved Road may be used only for Emergency Access; (2) the Road, Slope and Drain Easement and Paved Road shall be blocked and secured at each end by locked gates; and(3) only Grantor and those emergency public entities required by law to have access shall have keys to the locked gates, and Grantee or its designated successor shall have one key not to be duplicated. 13.The Road, Slope and Drain Easement will terminate and be extinguished in its entirety, and all interests previously granted herein shall revert to and merge in the interest of Grantor, on the earlier of the Road Easement Termination Date, the fortieth (40th) anniversary of the Public Access Start Date, or December 31, 2049. Grantee expressly acknowledges that after this termination of the Road, Slope and Drain Easement, neither Grantee nor any other person shall have any rights of Public Access, Emergency Access, or any other access anywhere over the Servient Tenement. 14. Grantee agrees that no additional structure other than the Permitted Structures will be installed, nor other uses made by or on behalf of Grantee, on or within the Servient Tenement except where expressly permitted herein. 76 '7 F- Grant of Easement S.C.E., a corporation to A.B. Properties, a Ca. general partnership Serial 68545A Affects SCE Does: 206689 278568 --- 15.This Road, Slope and Drain Easement is granted subject to the right of Grantor to construct, maintain, use, operate, alter, add to, repair, replace, reconstruct, enlarge and/or remove in, on, over, under, through, along and across the Servient_Tenement, electric transmission and distribution lines and communisation Panes, together w_th supporting structures and appurtenances, for conveying electric energy for light, heat, power and communication purposes, and pipelines and appurtenances for U e transportation of oil, petroleum, gas, water, or other substances, and conduits for a_- .y and all purposes. 16.The said Road, Slope and Drain Easement shall be exercised so.as not to unreasonaLbly endanger or interfere with the construction, maintenance, use, operation, oresenc-; repair, replacement, relocation,reconstruction or removal of such electric transmission, distribution or communication lines, pipelines,or other conduits. 17. Grantee agrees to hold harmless and indemnify Grantor to the fullest extent to which it can legally do so, form and against all claims, liens, encumbrances, actions, loss, damage, expense and/or liability arising from or growing out of loss or damage to property, including Grantor's own property, or injury to or death of persons, includirig employees of Grantor, resulting in any manner whatsoever, directly or indirectly, by reason of the exercise of the rights hereby granted; provided, however, that this covenant shall not apply in those instances where such claims, liens, encumbrances, actions, loss, damage, expense and/or_liability are caused by the sole active negligence of Grantor. 18.If at any time after the eighth anniversary of the Public Access Start Date Grantor determines in its sole discretion that (1) any transmission line(s), towers ar any other electricity transmitting equipment need to be added within the Servient Tenement, or (2) any or all existing transmission line(s), towers or any other electricity transmitting equipment need to be. reconfigured or relocated to, from or within the Servient Tenement, Grantee shall either: a. pay Grantor for any and all incremental costs of any such addition, reconfiguration, or relocation caused by the presence and/or use of any of the Permitted Structures and the Road,Slope and Drain Easement; or b. move, at Grantee's sole expense, the Road, Slope and Drain Easement and Permitted Structures to a different location(s) provided that in the opinion of a mgztually selected industry expert the new location(s) do(es) not interfere with Grantor's operation of its current transmission lines or its plans for added, reconfigured or relocated transmission lines. 19. Grantee agrees that in the exercise of its rights hereunder, its contractors, employees and other agents will maintain a minimum clearance of seventeen (17.00) feet between t1?ei_r equipment and any and all overhead electric conductors. 20. Grantor shall have full unobstructed access to its facilities at all times and the right to clear, keep clear,and remove any and all obstructions of any kind at all times. 21.Grantor reserves for itself the right to trim any tree or trees which may grow in or on the Servient Tenement and which, in the opinion of Grantor, may endanger or interfere with the proper operation or maintenance of any electric transmission, distribution and 77 7 F� Grant of Easement S.C.E., a corporation to A.S.Properties,a Ca. general partnership Serial 68545A Affects SCE Docs:206689 &278568 communication lines, to the extent necessary to prevent any such interference or danger. 22.The above described Road, Slope and Drain Easemeni is to be used only for time purposes specified herein and in the event: a. said Road, Slope and Drain Easement is not used by Grantee for this purpose, or should Grantee allow said Road, Slope and Drain Easement 'to be used for aby purpose inconsistent with the purposes specified herein; b. said Road, Slope and DraLi Ease-i cn- t is vacated as an access easem- er?t _°igl-t of way; or e. the project for which this Road, Slope and brain. Easement is being granted is abandoned, the Road, Slope and Drain Easement shall thereupon, ipso facto, revert to and merge in the interest of Grantor in the Servient Tenement. 23. Upon termination or reversion of the rights herein granted, Grantee shall execute and deliver to Grantor, within thirty (30) days after service of a written demand therefore, a good and sufficient quitclaim deed to the rights herein given. Should Grantee fail or refuse to deliver to Grantor a quitclaim deed, as aforesaid, a written notice by Grantor reciting the failure or refusal of Grantee to execute and deliver said quitclaim deed as herein provided and terminating this Road, Slope and Drain Easement shall, after ten (10) days from the date of recordation of said notice, be conclusive evidence against Grantee and all persons claiming under Grantee of the termination or reversion of the rights herein given. 24. Grantee hereby recognizes Grantor's title and interest in and to the Servient Tenement and agrees never to assail or resist Grantor's title or interest therein. 25.Grantee agrees that during any period of construction activity, it will periodically water down the construction area within the above described real property, so as to prevent dust contamination of Grantor's facilities. 26.The use of the neuter gender herein will,when appropriate, be construed to mean either the masculine or feminine gender or both. The terms, covenants and conditions of this Road Easement shall inure to the benefit of, and are binding upon, -'the heirs, successors, representatives and assigns of the Parties hereto. Dated: 2010. This Document may be executed in counterparts, each of which shall be deemed to be an original and all of which, taken together, shall constitute one and the same document. IN WITNESS WHEREOF, said Southern California Edison Company has caused this instrument to be executed this day of •2010• 78 '7'7 Grant of Easement S.C.E.,a corporation to A.B. Properties, a Ca. general partnership Serial 68545A Affects SCE Docs: 206689 278568 SOUTHERN CALIFORNIA EDISON COMPANY, at corporation By: Glenn A. Larson, ifanager of Northern region Land Asset Management—?ems Properties Operations Support Department GRANTEE does hereby accept the above and foregoing Easement upon and subject to all of the terms, covenants and conditions therein contained, and does hereby agree to comply with and perform each and all of said terms, covenants and conditions. DATED as of this_day of 2010. AB Properties, a California general partnership By: Paul D.Burns, president Burns-Pacific Construction, Inc., Its general partner 79 71q Grant of Easement S.C.E.,a corporation to A.E.Properties, a Ca. general partnership Serial 68545A Affects SCE Does: 206689 &278568 State of California ) conthnt-y of ) On before me, ,a Notary Public,personally, appeared , who proved to me on the basis of satisfacte-s y evidence to be the person[s] whose names] [is or are] subscribed to the within instrument a_n<-i acimoLvledged to me that [he or she or they] executed the same in [his or her] authorized [capacity or capacities], and that by [his o:her] signature[s] on the instrument the person[s], :`.r the entity on behalf of which the persons] acted, executed the instrument. I certify under PENALT1Y 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 ) On before me, a Notary Public, personally appeared ,who proved to me on the basis of satisfactory evidence to be the person[s]whose name[s] [is or are] subscribed to the within instrument and acknowledged to me that[he or she or they] executed the same in [his or her] authorized [capacity or capacities], and that by [h's or her] signatures] or,the instrument the person[s],or the entity on behalf of which the person[s] acted, executed the instrument. I certijs under PENAL �'OF PER uRY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my-hand and official seal. Signature [Seaq 80 �Q EXHIBIT "A" LEGAL DESCRIPTION THAT PORTION OF LOT "L" IN RANCHO SIMI, IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 3 PAGES 7, OF MISCELLANEOUS RECORDS (MAPS), IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY,BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: BEGINNING AT THE CENTERLINE INTERSECTION OF GABBER T LOAD ANAL) L O:S ANGELES AVENUE AS SAID INTERSECTION IS SHOWN ON THE MAP OF TRACT NO. 5147 FILED IN BOOK 158, PAGES 37 THROUGH 40 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY; THENCE, ALONG THE CENTERLINE OF SAID GABBERT ROAD, NORTH 00 00158" EAST, 1778.57 FEET; THENCE LEAVING SAID CENTERLINE, NORTH 89°58`G% WEST, 20.00 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SAID GABBERT ROAD, SAID POINT BEING THE TRUE POINT OF BEGINNING;THENCE LEAVING SAID RIGHT OF WAY LINE,THE FOLLOWING THREE(3)COURSES: 1. NORTH 89 058'02" WEST, 12.00 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 59.00 FEET, SAID CURVE HEREINAFTER REFERRED TO AS COURSE 1; 2. SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 71 000'00" AN ARC LENGTH OF 73.11 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 109.00 FEET, SAID REVERSE CURVE HEREINAFTER REFERRED TO AS COURSE 2; 3, SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 39 047'42" AN ARC LENGTH OF 75.71 FEET TO A LINE PARALLEL WITH AND 75.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM THE CENTERLINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY, SHOWN AS BEING 100.00 FEET WIDE ON SAID TRACT NO 5147; THENCE, ALONG SAID PARALLEL LINE, SOUTH 76014'5T' WEST, 591.36 FEET; THENCE, LEAVING SAID PARALLEL LINE THE FOLLOWING FOUR(4)COURSES: 1. NORTH 89°39'02"WEST,52.29 FEET; 2. NORTH 78°08'31"WEST,497.02 FEET; 3. SOUTH 86039'35"WEST, 66.99 FEET; A NORTH 80°21'43"WEST, 26.66 FEET TO THE SOUTHERLY PROLONGATION OF THE EASTERLY LINE OF SAID TRACT NO. 5147; THENCE, ALONG SAID PROLONGATION AND SAID EASTERLY LINE OF SAID TRACT, NORTH 00 001'07" EAST, 107.83 FEET; THENCE, LEAVING SAID EASTERLY LINE THE FOLLOWING EIGHT(8)COURSES: EXHIBIT`A°-Page 1 of 3 81 Qa EXHIBIT 66.099 LEGAL DESCP PTION 1. NORTH 49 043'58" EAST, 32.21 FEET; Z SOUTH 84°3648" EAST,96,89 FEET; 3. SOUTH 60°47'06" EAST, 57.79 FEET,, 4. SOUTH 68°37'12" EAST,68.89 FEET; 5. SOUTH 32 04349" EAST,93,62 FEET; 6. SOUTH 69 012'35" EAST,253.37 FEET; 7. SOUTH-73 042°44 EAST,45.29 FEET; 8. NORTH 85°20'25" EAST, 63.97 FEET TO A LINE PARALLEL WITH AND 124.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY; THENCE, ALONG SAID PARALLEL LINE, NORTH 76 014'57" EAST, 43.47 FEET; THENCE, LEAVING SAID PARALLEL LINE, NORTH 13 045'09"WEST, 12.00 FEET TO A LINE PARALLEL WITH AND 136.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY; THENCE ALONG SAID PARALLEL LINE, NORTH 76°14'57" EAST, 30.00 FEET; THENCE, LEAVING SAID PARALLEL LINE, SOUTH 13°45'09" EAST, 13.00 FEET TO A LINE PARALLEL WITH AND 123.00 FEET NORTHWESTERLY; MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF THE SOUTHERN PACIFIC.RAILROAD RIGHT OF WAY; THENCE, ALONG SAID PARALLEL LINE, NORTH 76°14'57" EAST, 48.13 FEET; THENCE, LEAVING SAID PARALLEL LINE, NORTH 13°45'09" WEST, 6.00 FEET TO A LINE PARALLEL WITH AND 129.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY; THENCE ALONG SAID PARALLEL LINE, NORTH 76°14'57" EAST, 34.00 FEET; THENCE, LEAVING SAID PARALLEL LINE, SOUTH 13°45'09" EAST, 6.00 FEET TO SAID LINE PARALLEL WITH AND 123.00 FEET NORTHWESTERLY, MEASURED AT RIGHT ANGLES, FROM SAID CENTERLINE OF THE SOUTHERN PACIFIC RAILROAD RIGHT OF WAY; THENCE ALONG SAID PARALLEL LINE, NORTH 76°14'57" EAST, 191.94 FEET; THENCE, LEAVING SAID PARALLEL LINE,THE FOLLOWING FIVE(5)COURSES: 1. NORTH 29 053'53" EAST, 14.93 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF 75.00 FEET; 2. NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 46 020'58"AN ARC LENGTH OF 60.67 FEET; 3. NORTH 76 014'51" EAST, 10.87 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 110.00 FEET; 4. EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 25 052'10" AN r ARC LENGTH OF 49.67 FEET; EXHIBIT"A"-Page 2 of 3 82 EXHIBIT "A" LEGAL DESCRIPTION 5. SOUTH 77052'59' EAST, 50.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE NORTHWESTERLY, HAVING A RADIUS OF 56.00 FEET, SAID CURVE ALSO BEING CONCENTRIC INITH AND NORTHWESTERLY 53.00 FEET FROM SAID COURSE 2, A RADIAL LINE THROUGH SAID BEGINNING OF CURVE BEARS SOUTH 24034'56" E A T; �ts THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 46023'06n AN ARC LENGTH OF 45.34 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE SOUTHEASTERLY, HAVING A RADIUS OF '112.00 FEET, SAID CURVE ALSO BEING CONCENTRIC WITH AND NORTHWESTERLY 63.00 FEET FROM SAID COURSE 1; THENCE NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 53038!09"AN ARC LENGTH OF 104.85 FEET; THENCE SOUTH 19*53-25" EAST, 3.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE SOUTHERLY, HAVING A RADIUS OF 109.00 FEET, SAID CURVE ALSO BEING CONCENTRIC WITH AND NORTHWESTERLY 50.00 FEET FROM SAID COURSE 1, A RADIAL LINE THROUGH SAID BEGINNING OF CURVE BEARS NORTH 17*15'39"WEST: THENCE EASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 17017'37"AN ARC LENGTH OF 32.90 FEET; THENCE SOUTH 89058'02" EAST, 12.00 FEET TO.SAID WESTERLY RIGHT OF WAY LINE OF GABBERT ROAD; THENCE, ALONG SAID RIGHT OF WAY LINE, SOUTH 00001'58-WEST, 50.00 FEET TO THE RUE POINT OF BEGINNING. THE ABOVE DESCRIBED PARCEL CONTAINS 2.35 ACRES, MORE OR LESS. THE ABOVE LEGAL DESCRIPTION IS DELINEATED ON EXHIBIT "B"AND IS MADE A PART HEREOF FOR REFERENCE PURPOSES. we pLLA GREGORY T. ObHLARBAUM P.L.S.6704 0 REGISTRATIO EXPIRES 6/30112 PLS 6704 EXP 6/30/12.�," I DATE PREPATED: 7-06-10 0 CA EXHIBIT°A°-Page 3 of 3 83 07 EXHIBIT "Bay I 11 1z PLAT TO ACCOMPANY LEGAL DESCRIPTION FOR EXHIBIT '"A" I '.y: +------- — —�—_ —I SEE SHEET �i—® — ®® —_ SEE SHEET 2�---! I SEE SHEET 4-� 1 I I -:: oil L—B 00 C3° �i�� tut»��F T�+HE{{��LANDS O 3 P i rR 7 V rP r-~_L--_-P CIFI� I �1 OF MAIR Ot= i'HE LAINDS O i I II I LOS ANGELES AVENUE i F.Q.B. N SHEET 1 OF 5 SCALE. 1"=150' EXHIBIT "B" 168 8.8iveNree 8tive,Ste.109 ACCESS EASEMENT (Engineering, Inc. Anaheun Bib,Cattfamla 92808 CITY OF MOORPARIK, CAUFORNIA Civil Engineering/Land Surveying/Land Planniny (714)665-6868 00 F EXHIBIT "B" PLAT TO ACCOMPANY LEGAL DESCRIPTION FOR EXHIBIT "A" ���� - Q � ; t SUBDIVISION MAP OF THE I.,r.I DS OF, C7 I I I 3MR7 Af Lij C4 � S7®5�ss�� I �� B,Q ( i Cn conk. v-�trcr�. 6 (W38�Vw Stroh ` / ev ( I I 9.5 ILA LLJ PR®ROSS PRN fS 5��a36a . J J GRApIN IM ��57��. y' �' o_ z BK 2141/pG 5gg er o ILROAD I m �� cics � SOUTHER N RA�IFIE J _—f SEE SHE 5 OR I f — LINE AND CURVE DATA N I I NT SEE SHEET 1 SHEET 2 OF 5 SCALE: 1 50' EXHIBIT 'D" lab�,Iirerricr 8me,Sle l00 ACCESS EASEMENT � � Engineering, Inc. IABG'dm lik Cale*12868 CITE' OF MOORPARK CALIFORNIA Civil Engineering/Land Surveying/Land Planning �l14)88I-68II 85 EXHI Bff 'T PLAT To ACCOMPANY LEGAL DESCRIPTION FOR EXHIBIT "AFB SUBDIVISION "L." OF kAAP OF THE I-AMDS OF RANCHO SIMI MR 7 ACCESS RAJ STA. 24+59.822®C INLET S�7�,'UCFtRE RJ PROTECTION AS SHOW W17HN EASEUEN ACCESS RD STA. 25+4QO0=f COMA' ACCESS RD STA DRNEWAY X11 24+25.00=� CONC DRAtEWAY 1.7 t10 1.3% Lg w ` X5,29, 63.970 25 / AND vs 2; 24 p�OP� pROVE� s7 Eel �141 I PD N 5gS J p� s 789ne,e.7f m 4sy.oa. w Nss1s'o2Zwt — °d -' 52,29` E(iSTNC?R KS Q, a RR .�ACCESS � T J JJ�Q ewe. 59a DOVEWAY J'• SEE SHEET 5 FOR LIME AND CURW DAM SCALL 1"=50® SHEET 3 OF 5 DWIBIT 'P" 1801,Ilrerkiee IdK Sie.ice ACCESS EASEMENT 1JUNCEn!gIneering, Inc. kndeln e>k cdiamia 02809 C[N OE MORPARK, CAUFORNIA civil Englneering/Land Surveying/Land Planning (�¢�sIS-Il6C 86 RS -- - EEXAHIBIT "B" PLAT TO ACCOMPAW LEGAL DESCRIPTION FOR EXHIBIT "A" q'O ELY Zfl ? Rf� 77 9—iy. SUBDIVISION 'IL- OF MAP OF THE LANDS OF X so �� RANCHO $lMl d `48"Cl' 95.89- SCALE: ,9CCESS RD STA. Ss ls5 X89 4£ V) ice" FROPE!?7Y dINE '8 S82�$, 93.620 f°PD,o �- �® i N86°39 i m( N78 1 . y� p'�3s 49702. { 266, . S'LY PROLONGATION 1°- ��- ,/—OF THE ELY LINE OF 1 TRACT N0, 5147 i I i I UBDIVIS1014 "I,_" i OF MAP OF THE L:AI' D$ OF RANCHO Sihig 3 MR r i SEE SHEET 5 FOR LINE AND CURVE DATA SHEET 4 OF 5 ���� ,�„ 166 N,Himlan Urine,Ste,Joe ACCESS EASEMENT U�tal��'ts� Engineering,Inc. Mahone sk,Ca1i►amia 92aca CM OF MOORPARK, CALIFORNIA Civil Engineering/Land Surveying/Land Alannlog (7141 Ba&-6U6U 87 86 EXHIBIT NB" PLAT TO ACCOMPANY LEGAL DESCRIPTION FOR EXHIBIT 0A" LINE TABLE LINE BEARING LENGTH L1 N>39°58°02°W 20.00° L2 N89°58°02"W 12.00' L.3 N69'12'35"W 253.37' CURVE: TABLE L4 N76'IVS7"E 43.47° 1 CURVE DELTA RADIUS LENGTH L5 N1345'09"W 12.00° C1 74800°00� 59.00° 73.11' L8 N7694'57'°E 30.00' C2 39`4742" .109.00° 75.717 L7 S13°45'09"E 13.00° 75.00' 60.67'C3 460`5✓ ' L8 46. N769 '57"E 13° L9 N13'45'09"W 6.00 C4 2&°52'10" 140.00° 49.67° 170 N76 4°57"E 34.00' M" 46°&06" 56.00° MOW L11 S13'45b9"E 6.0EY Cs 53 8'09" 112.00' 104.85' L12 N76'14'S7"E 191.94° C7 17"17'37" 109.00' 3290' L13 N29'S3'S3"E 14.93' L14 69,951"E 10.87' L15 S19'5;3'250'E 3.00' L16 S89°58'02"E 12.00' L17 S00°01W 50.00' °58" SHEET 5 OF 5 EXHIBIT 'B" � 169 R.1krde,oar;Sie.me ACCESS EASEMENT 13RC Engineering, Inc. Ad*Rl%comoraia 91me CITY OF MIOORPARK, CALIFORM14 Civil Engineering/land Surveying/Land Planning (114 II5-6960 88 87 EXHIBIT 6 Ef'6 RECORDING REQUESTED BY SOUTHERN CALIFORNIA EDISON COMPANY WHEN RECORDED MAIL. TO SOUTIiERN CALIFORNIA EDISON COMPANY 14799 Chestnut Street, v%estm?_ ster, Ca. 92693 Attn: Title & Real Estate Services SPACE ABOVE THIS LINE FOR RECORDER'S USE I{)(TMiff EASINMENT DOCUMENTARY TRANSFER TAX$ SER. 68869A Location: COMPUTED ON FULL VALUE OF PROPERTY CONVEYED • APPROVED A.P.N. 511-0-200-225 NO CONSIDERATION AND VALUE LESS THAN 100.00 SCE LAW DEPARTMENT &511-0-200-235 Affects SCE Documents: SO,CALIF.EDISON CO. BY WAM DATE 41=10 206680&278568 SIGNATURE OF DECLARANT OR AGENT DETERMINING TAX FIRM NAME FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, SOUTHERN CALIFORNIA EDISON COMPANY, a corporation, (hereinafter called "Grantor"), does hereby grant to AB PROPERTIES, a California general partnership, (hereinafter called "Grantee" and, together with the Grantor, the "Parties") subject to the terms and conditions stated herein, an easement (hereinafter "Utility Easement"), described on the Exhibit "A" and more particularly depicted,on the Exhibit"B",both attached hereto and by this reference made a part hereof, across that certain real property in the County of Ventura, State of California (hereinafter the "Servient Tenement"} for the installation, operation and maintenance of underground cable, electricity, tel-com fiber optics, natural gas, water and sewer utility lines, pipes and Conduits (hereinafter"Utilities"), described as follows. Servient Tenement: The East half of the Southeast quarter of Section 6, Township 2 North, Range 19 West, Rancho Simi, in the City of Moorpark, County of Ventura, State of California,as shown on map entitled, Map of the Lands of Rancho S> i, in Ventura and Las Angeles Counties, California, and recorded in Book 3, Pagel of Maps, ?n the Office of the County Recorder of said Count, and particularity described as follows: "Beginning at a point in the centerline of that certain public road, 60 feet wide, locally known as and called "Los Angeles Avenue at the corner common to Sections 5,6, 7 and 8 of Township 2 North, Range 19 Test, Rancho Simi, as shown on the above described map, said point of beginning being the Southwest corner of Tract"Q" as shown on map entitled"Map of a Part of Tract "L" of Rancho Simi, Ventura County, California, showing the Township of Moorpark and Lands of Madeleine R. Poindexter, a Re-subdivision of Fremont Tract" and recorded in Book 5, Page 5 of Maps, In the office of the County Recorder of said Ventura County; thence,from said point of beginning, r 90 1 st: North 2540 feet to the Southeast corner of Lot 56 of Vallette Tract, as per Map recorded in Book 3,Page 41 of Maps, in the office of the County Recorder of said County; thence, at right angles, 2r±d: driest 1320 feet to the Southwest corner of said Lot 56 of;IaLette Tract, at the INort ev-st cornea.° of that certain parcel of land conveyed to Mary Frances Estes, by deed dated Octcber 22, 1902 and recorded?n Book 87, Page 120 of Deeds; thence, at right angles; 3rd: South 26' 1€3 feet along the .East line of said lands of !tIary �'rasces Estates to a eo+nl_ n the centerline of said Los Angeles Avenue; thence, along same, 4th: East 1320 feet to the point of beginr+..ing. Except that portion lying Southerly of the Northerly line of that certain strip 100 feet wile described in the deed to the Southern Pacific railroad Company, recorded November 13, 1599, in Book 58, Page.596 of Deeds." Commonly known as A.P.N. 511-0-200-225 and 511-0-200.235 SUBJECT TO prior covenants, conditions, restrictions, reservations, exceptions, encumbrances, rights, easements, leases and licenses, affecting the Se-rvient T enemetIt or any portion thereof,whether of record or not. The foregoing grant is made subject to the following terms and conditions: 1. This Utility Easement shall be located where indicated in Exhibit B hereto, and shall be appurtenant to, and for the sole benefit of, that property owned in fee by Grantee described as lots 1 though 17 inclusive of Tract No. 51.47, as per map recorded in Book 158. page 37, of Miscellaneous Records,in the Office of the County Recorder of Ventura County, State of California (hereinafter the "Dominant Tenement"), and only that property. 2. The Utilities shall be permitted within the Utility Easement from date of the recording of this Utilities Easement (the "Utilities Easement Start Date'), until the earlier of(1) the fortieth (40th) anniversary of the Utilities Easement Start Date, (2) voluntary relinquishment and quitclaim by Grantee, or (3) December 31, 2049 (the "Utility Easement Termination Date'. At the Utility Easement Termination Date, this Utility Easement shall be extinguished in it---entirety, and the right to locate any Utility xvithin the Utility Easement evill terminate,revert to and merge in the interest of Grantor?n the Servient Tenement. 3. A-ter the Utility Easement Termination Date, Grantee shall not have any right to locate any Utility in the Utility Easement or anywhere within the Servient Tenement. On or before the Utility Easement Termination own ate, Grantee shall at its ow risk_and expertise remove all remaining Utilities from the Utility Easement and restore said Servient Tenement as nearly as possible to the same state and condition that it was in prior any construction of said facilities, but if it should fail to do so within sixty (60) days after such termination, Grantor may do so at the sole risk and expense of Grantee, and all cost and expense of such removal and the restoration of said premises as aforesaid, together with interest thereon at the rate of tem percent(10%) per annum shall be paid by Grantee upon demand. 91 4A 4. This Utility Easement is accepted upon and subject to the express condition that the improvement for which the Utility Easement is given, regardless of the time performed, and any other work or improvement commenced within two years from the date of recording of this Utility Easement (which improvement and other work or improvement and other work or improvement are hereinafter sometimes collectively called `improvement") shall be done without any cost or expense whatsoever to Grantor, and that is the event a special assessment or.assessments is or are levied by an authored la-%f i body against the real property of Grantor for the Improvement, Grantee agrees that it will reimburse Grantor for the full amount of any and all such spacial assessniCl t or assessments so levied for said Improvement and paid by Grantor. 5. Grantee covenants, for itself, its successors and assigns, to construct and maintain r_'he Improvement to be located on the Servient Tenement at its ovv-n e�T' ense. 6. Grantor agrees that no additional structures hill be installed on or within the Servient Tenement. 7. This Utility Easement is granted subject to the right of Grantor to construct, maintain, use, operate, alter, add to, repair, replace, reconstruct, enlarge and/or remove in, on, over, under, through, along and across the Servient Tenement, electric transmission and distribution lines and communication lines, together with supporting structures and appurtenances, for conveying electric energy for light, heat, power and communication purposes, and pipelines and appurtenances for the transportation of oil, petroleum, gas,water, or other substances, and conduits for any and all purposes. 8. Grantor shall not erect or place at any future time any of its facilities so as to unreasonably interfere with the rights of Grantee created by this Utility Easement grant. 9. The said Utility Easement shall be exercised so as not to unreasonably endanger or interfere with the construction, maintenance, use, operation, presence, repair, replacement, relocation, reconstruction or removal of such electric transmission, distribution or communication lines, pipelines, or other conduits. 10. Grantee agrees to hold harmless and indemnify Grantor to the fullest extent to which it can legally do so, form-and against all claims; liens, encumbrances, actions, loss, damage, expense and/or liability arising from or growing out of loss or damage to property, including Grantor's own property, or injury to or death of persons, including employees of Grantor, resulting in any manner whatsoever, directly or indirectly, by reason of the exercise of the rights hereby granted; provided, however, that this covenant shall not apply in those instances where such claims, liens, encumbrances, actions, loss, damage, expense and/or liability are caused'by the sole active negligence of Grantor. 11. L at any time after the eighth anniversary of the Utilities Easement Start Date, Grantor determines in its sole discretion that (1) any transmission line(s), towers or any other electricity transmitting equipment need to be added within the Servient Tenement, or(2) any or all existing transmission line(s), towers or any other electricity transmitting equipment need to be reconfigured or relocated to, b-om or within the Servient Tenement, Grantee shall either:_ a. pay Grantor for any and all incremental costs of any such addition, reconfiguration, or relocations caused by the presence and/or use of the Non-Gas Utilities and the Utilities Easement; or 92 b. move, at Grantee's sole expense, the Non-Gas Utilities to a different location - provided that in the opinion of a mutually.selected industry expert the new location does not interfere with Grantor's operation of its current trarnsmission lines or its plans for added,reconfigured or relocated transmission lines 12. Grantor agrees that in the exercise of its rights hereunder, its contractors, employ yes and other agents will maintain a m?rllTu_713 clearance of seventeen (17.00) feet betvdGEcAD their. equipment and any and all overhead electric conductors. 13.Grantor shat have fulll unobstructed access to its facilities at all tinses and the right, to clear, keep clear, and remove any and all obstructions of any kind at all tunes. 14.Grantor reserves for itself the right to trim any tree or trees which may grow in or Yr the Sor-vient Tenement and which, in t_t?e opi-nion of G-ranto-r, endanger or interfere w th the proper operation or mairitenan.ce of any electric transmission, distribution ar?d communication lines, to the extent necessary to prevent any such icnterference or danger. 15.The above described Utility Easement is to be used only for the purposes specified herein and in the event: a. said Utility Easement is not used by Grantee for this purpose, or should Grantee allow said Road, Slope and Drain Easement to be used for any purpose inconsistent with the purposes specified herein; b. said Utility Easement shall be vacated as a utility easement right of way;or e. the project for which this Utility Easement is being granted is abandoned, the Utility Easement shall thereupon, ipso facto, revert to and merge in the interest of Grantor in the Servient Tenement. 16.Upon termination or reversion of the rights herein granted, Grantee shall execute and deliver to Grantor, within thirty (30) days after service of a written demand therefore,-a good and sufficient quitclaim deed to the rights herein given. Should Grantee fail or refuse to deliver to Grantor a quitclaim deed, as aforesaid, a written notice by Grantor reciting the failure or refusal of Grantee to execute and deliver said quitclaim deed as herein provided and terminating this Utility Easement shall, after ten (10)days from the date of recordation of said notice, be conclusive evidence against Grantee and an persons claiming under Grantee of the termination or reversion of the rights herein given. 17.. Grantee hereby recognizes Grantor's title and interest in and to the Servient Tenement and agrees never to assail or resist Grantor's title or interest therein. 13.ALI miderground facilities shall be buried i--,l the ground so that the tops thereof shall be not less than 36 inches below the surface of the ground, shall be capable of supporting three-axle vehicles weighing*up to forty (40) tons, and shall be of such type of construction and material as to be sufficient and safe for the purpose for which they are to be used. 19.Grantee agrees that during any period of construction activity, it will periodically water down the construction area within the above described real property, so as to prevent dust contamination of Grantor's facilities. 93 a� 20. Grantee shall promptly and properly replace the earth over any underground facilities, shall tamp or water-settle such earth so that no depressions shall be left or shall develop in the surface of the ground over said underground facilities, and shall restore he surface of the ground over said underground facilities to as near its origisaal condition and appearance as possible. Any earth fill placed by Grantee within the boundaries of the above-described real property shall have a relative compaction density of ninety percent(90%). 21.Grantee shall place identification? and location markers of a numnbef, location aL d nature suitable to Grantor, indicating the -type, location and depth of any, facil tjes, structures or equipment located by Grantee i_7 the underground of' e Uf ity Easemv rat. 22.The use of!:be neuter gender herein vr+11,vrhen appropriate, be construed to mean either the masculine or femin?ne gender or both. The terms, covenants and conditions of this Utility Easement shall inure to -tae benefit of, and are binding upon, dle L`E-�irs, successors, representatives and assigns of the Parties hereto. Dated: 22010. This Document may tie executed in counterparts, each of which shall be deemed to be an_ original and all of which, taken together, shall constitute one and the same document. IN WITNESS WHEREOF, said Southern California Edison Company has caused this instrument to be executed this day of —, 2010. SOUTIlgRN CAI.MOR1TA,EDISON COMPANY, a corporation By: Glenn A. Lar son, Manager of Northern Region Land Asset Management–Real Properties Operations SUppo_t Depatmerit 94 GRANTEE does hereby accept the above and foregoing Easement upon and subject to all of the terms, covenants and conditions therein contained,and does hereby agree to comply with and perform each and all of said terms,covenants and conditions. DATED as of this day of , 2010. AB Properties, a Califon is general pa-ft-ership. may: Paul D. Burns,president Bur7.s-Pacific Construction, Inc., Its general partner 95 �w State of California County of On before me, a Notary Public,personally appeared who proved to me on the basis of satisfactory evidence t n tnun nt aiid -vi o be the person[s]whose names] [is or are] subscribed to the dthin i s e acknowledged to me that [he or she or they] executed the same in [his or her] authorized [capacity or capacities], and that by[his or her] sjg_na:bjre(s] on the instrument the PeTson*j, o r 'dic entity on behalf of which the person1s] acted, executed the Instrument. I certify under PETNA0117y: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 [Sea4 State of California County of on before me, a Notary Public, personally appeared who proved to me on the basis of satisfactory evidence to be the person[s] whose name[s] [is or are] subscribed to the within instrument and acknowledged to me that [he or she or they] executed the same in[his or her] authorized [capacity or capacities],and that by[his or her] signature[s] on the instrument the person[a], or the entity on behalf of which the person[s] acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of CabIornia that the foregoing paragraph is true and correct. WITNESS my hand and official seat. Signature [Seat] 96 nr )91=rr vvAvf LEGAL DESCRIPTION SERIAL No.68859A 261 WIDE UTILITY EASEMENT A PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 6,TOWNSHIP 2 NORTH,RANGE 19 WEST, RANCHO SIMI,IN THE COUITY OF VENTURA, STATE OF CALIFORNIA,AS SHOWN ON MAP EN-IJTLEFD, 'M"OF THE LANDS OF RANICHOSR\fl,IN VENTUIR-A-AND LOS ANGELES COUN—IIES, CALIFORNIA,"AND RECORDED ON BOOK 3,PAGE 7 OF MAPS,IN THE OFFICE OF THE COUNTY RECORDER OF VENTU-PA COUNTY. BEING STRIP OF LAND,206,00 FEET IN WIDTH,THE CENTERLINE BRI-INGi DESCRIBED AS FOLLOWS: BEGINNING AT THE CENTERLINE INTERSECTION OF GABBERT ROAD AND LOS ANGELES AVENUE AS SAID INTERSECTION IS SHOWN ON THE MAP OF TRACT NO.5147 FILED IN BOOK 158,PAGE 39 OF MISCELLANEOUS MAPS, RECORDS OF SAID COUNTY;THENCE ALONG THE CENTERLINE OF SAID GABBERT ROAD,NORTH 00-01'58"EAST, 1739.78 FEET,THENCE LEAVING SAID CENTERLINE,SOUTH 7614'51"WEST,20.59 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF SAID GABBERT ROAD,SAID POINT BEING THE TRUE POINT OF BEGINNING;THENCE LEAVING SAID-RIGHT OF WAY LINE,THE FOLLOWING THIRTEEN(13)COURSES: 1) SOUTH 76-14'51"WEST,249.55 FEET TO THE BEGINNING OF A CURVE, CONCAVE NORTHEASTERLY,HAVING A RADIUS OF 210.00 FEET-5 2) NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 33047'04"AN ARC LENGTH OF 123.83 FEET; 3) NORTH 69-58'05"WEST, 57.47 FEET TO THE BEGINNING OF A CURVE, CONCAVE NORTHEASTERLY,HAVING A RADIUS OF 50.00 FEET; 4) NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 45000'00?'-AT4 ARC LENGTH OF 39.27 FEET; 5) NORTH 24-58'05"WEST, 72.93 FEET TO THE BEGINNING OF A CIJWV--H, CONCAVE SOUTHWESTERLY, HAVING A RADIUS OF 50.00 FEET; 6) NORTHWESTERLY AND SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 81001'34"AN ARC LENGTH OF 70.71 FEET TO THE BEGINNING OF A COMPOUND CURVE,CONCAVE SOUTHEASTERLY,HAVING A RADIUS OF 210.00 FEET,A RADIAL LINE FROM SAID BEGINNING OF CURVE BEARS NORTII 15*59'39"WEST; 97 clr_ - -- 7) SOUTHWESTERLY ALONG SAID CURVE SOUGH A CENT RAL ANGLE OF 33057'400"AN ARC LENGTH OF 124.48 FEET TO THE BEGINNING OF A REVERSE CURVE,CONCAVE NORTHWESTERLY) HAVING A RADIUS OF 210.00 FEET,A RADIAL LINE FROM SAID BEGINNING OF CURVE BEARS NORTH 49 057'27"WEST; o) SOUTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 49°41'21"AN ARC LENGTH OF 1802.12 FEET; 9) SOUTH 89°43'54"WEST,276.63 F—EET TO THE BEGIINNR4G OF A CURVE-, CONCAVE NORTHEASTERLY, HA VING A RADIUS OF 250.00 FEET; 10)NORTHWESTERLY ALONG SAID C-URVE!'HOUGH A CEIN T RAC, ANGLE, OF 16°30'57"AN ARC LENGTH OF 72.06 FEET 11)NORTH 73°45'09"WEST,36.52 FEET TO THE BEGINNING OF A CURVE, CONCAVE SOUTHWESTERLY,HAVING A RADIUS OF 250.00 FEET; 12)NORTHWESTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 31 002'49"AN ARC LENGTH OF 135.47 FEET; 13)SOUTH 75 012'02" WEST,4.53 FEET TO THE EASTERLY LINE OF THE WESTERLY I4-ALF OF THE SOUTIEAST QUARTER OF SECTION 6, TOWNSHIP 2 NORTH,RANGE 19 WEST,SAN BERNARD?NO MERIDIAN. THE SIDELINES OF SAID STRIP TO BE PROLONGED OR SHORTENED TO ORIGINATE IN THE WESTERLY RIGHT OF WAY LINE OF SAID GABBERT ROAD AND TO TER MLNATE LEI THE EASTERLY LINE OF THE WESTERLY HALF OF THE SOUTHEAST QUARTER OF SAID SECTION 6. THE ABOVE LEGAL DESCRIPTION IS DELINEATED ON EXHIBIT`B"AND IS MADE A PART HEREOF FOR REFERENCE PURPOSES. ALL FOUND MONUMENT DESCRIPTIONS, BASIS OF BEARINGS, COURSES, ETC.ARE AS SHOWN ON E�IIIBIT "B"ATTI ACHED HEREW-F I-I AND MADE A PART HEREOF. PREPARED BY ME OR UNDER-MY DIRECTION O LA CE J � 4 0 No.7373 � ���� DATE N� EXP.12-31-11 LAWRENCE I. KELLEY,P.L.S.No.7373 SOUTHERN CAIJFORN U EDISON COMPANY �OF CAS�4b i 98 A PORTION OF THE EAST HALF OF THE SOUTHEAST QUARTER OF SECTION 6, TOWNSHIP 2 NORTN". RANGE 19 WEST, RANCHO SIMI, IN THE.COUNTY OF VENTURA, STATE OF .CALIFORNIA, AS SHOWN ON MAP ENTITLED, "MAP OF THE LANDS OF RANCHO S1Ml, IN VENTURA AND LOS ANGELES COUNTIES,, CALIFORNIA," AND RECORDED ON BOOK 3, PAGE 7 OF MAPS, IN THE OFFiCE OF THE COUNTY RECORDER OF VENTURA COUNTY. LANDS OF GRANTOR Area = 468825 SgFt = 10.7627 Acres ® 26' WIDE UTIUTY EASEMENT Area = 37585 Sgrt _ 0.8628 Acres N 15°59:39" W C4 (RAD.) �, /—T.P.O.�_ N 49°5727' W `° L2 L6 .26 L3 0-1 C7 C2 17 L L5 C5 C,^ U?UTY EASEhIEnIf C/L P()11\1 DEPT L Il ` I i©AO R 50 PACIFIC; R CALCULATED POW 100 VFJVTURA CO SURVEY MON CO FI QOD P.M. 3192, 31/ 61 VENT�ROL DISTRICT r LINE/ CURVE TABLE ,may I a !NUMBER BEARING LENGTH RADIUS DELTA L 1� S76'1451"W 20.59' �� -��_ W L2 S76°14'51°W 249.55' CL AS o C1 123.83' 210' 33°47'04„ pia 7373 �0 m W Vi o l,x Nj� p.1234°17 �'� I 2 L3 N69'58'05V 57.47' o C2 39.27' 50' 45'00'00" �0/`CALF °'Z Q I L4 M24'5810511# 72.93' C3 70.77' 50' 81°01'34° I C4 124.48' 210' 33 5748" C5 182.12' 210' 49°41 21" I L5 S89'43'54W 276.63' FOUND 20 IP IN CONCRETE; NO TAG C6 72,08' 250' 16°30'57' IN LIEU OF RR L6 N73 SPIKE PER P.M. °45'09"W 36.52' 3192, 3V 61 __ 1 C7 135.47' 250' 31°02'49' CfL LOS ANGELES AVE L7 S73°12'02V 4.53' (M) MEASURED (C) CALCULATED 0 300 600 (R) RECORDED SCALE IN FEET EXHIBIT 99B,9 PROJECT NAME: MOORPARK•-SANTA CLARA R/W M.S. 61-73 MAP & F.B. REF:SCE FB 10627 PGS. 1-4 CITY: MOORPARK DRAWN 13Y: M. SIUDZINSKI SURVEYED I3Y: BOYD — 13ARDEN COUNTY:VENTURA �"�c a DATE:06-17-09 LAND INFO.: J.G. SER.:68859A NOTIFICATION # :200466401 � ��� CHECKED BY: L. KELLEY File Name: M.\ARCHNE\DRAWING\2009-200466401 DWG 99 nn EXHIBIT 7 100 EXIHBff 7 (NON-NEGOTIABLE)PROMISSORY NOTE SECURED BY DEED OF_fRU1 ENT $2,000,000 Moorpark, California August_, 2010 For value received,tb-is Promissory Note Secured by Deed of Trust x0-te give-a by A-B Properties, a California general partnership ("Payor") in conssiderff iioq of, and to secure certain of the terms and conditions of, a Settlement Agreement and Murval Release(the"Settlement Ag-eement") entered in August 20 10 by and among Payor, Burns-Pacific Construction, Inc. , and Paul D. Burns; the Southern California Edison Company("SCE"or Vqye "); and Louis David Savo, Susan C. Bavo, Richard S. Hambleton, Jr., A. A. Milligan, John R. Milligan(aka John Reid Milligan), Kimberley Jeanne Milligan,Marshall C. Milligan, Michael S.Milligan,Alan J. Pomato,Allison Jones Pornato,Julia Milligan Summers, Idaho Trust Company, and the Richard H. Jones Ltd. Partnership. Specifically,this Note is given to secure the payment by the Payor of the thirty-two (32)Annual Use Fees, as that term- is defined in paragraph 8 of the-Settlement Agreement, that are due and payable on the eighth(e)through thirty-ninth(39'x) anniversaries of the Access Easement Start Date(the "Due'Date") for continued Public Access in the Access Easement or the continued use of the Utilities Easement, as defined in paragraphs 6a and 6b of the Settlement Agreement. The failure of Payor to timely pay any such Annual Use Fee prior to the Due Date for such Annual Use Fee fee shall constitute a material breach of the Settlement Agreement and a default under this Note("Event of Default"). In the Event of Default, SCE shall provide Notice of such Event of Default to Payor, in accordance with the notice provisions of section 13n of the Settlement Agreement. Payor shall have thirty(30)days from such notice to cure the Event of Default. If the Event of Default is not cured within that time period,then, in addition to the $125,000 missed payment then due and owing, payment of all Annual Use Fees for the following fifteen(15)years (or, if less, for the remaining number of years until the thirty-ninth(39th)anniversary of the Access Easement Start Date)up to the two million dollars ($2,000,000) face amount of this Note shall also be immediately due and payable under this Note;provided however, any amounts collected by SCE in excess of the then due and owing Annual Use Fees shall be held by SCE in an interest bearing account and shall, along with any interest earned,be applied by SCE as a credit toward future Annual Use Fee obligations as they become due. All such credit amounts remaining up.on the later of(1)the termination of the Public 101 116169 ,too the Utilities Easement Termination Date shall be remitted to A-E, as each of those tuns are defined in the Settlement Agreement An Event of Default shall not in any event relieve Payor of its obligation under-the Settlement Agreement to make any and all fiarther payments of Annual Access Fees, ;ncluding to the extent such payments exceed two million dollars ($2,000,000). All parties to this Note, including the maker and Payor, and whether bound by this or by separate instrument or agreement, waive any further presentment for payment, demand, protest, notice of non-payment, or dishonor and of protest, and any and all other further notices and demands whatsoever, and consent that at any time, or from time to tinge,payment of any sum payable under this Mote may be extended without notice, whether for definite or indefinite tune. This Dote is secured by the First Deed of Trust in the amount of two million dollars ($2,000,000) to Stuart Title of California, Inc., dated the same date as this Note, executed by Payor, as trustor, in favor of Payee, as beneficiary, and encumbering the certain real property located in the City of Moorpark, State of California that is sometimes known by assessor parcel numbers 510-0-180-110 and 510-0-190-120. Payor shall pay to Payee all sums owing pursuant to the terms of this Note without deduction, offset, or counterclaim of any kind. The relationship of Payor and Payee under this Note is solely that of obligor to oblige, and the payments due under this Note and secured by the First Deed of Trust will in no manner make Payee the partner of Payor or create any joint venture relationship between Payee and Payor. This Note shall not be amended or modified, and no provision herein shall be waived, except in a writing executed by both Payor and Payee. No previous waiver by Payee acting with respect to the terms of this Note,the First Trust Deed or the Settlement Agreement will constitute a waiver of any breach, default or failure of condition under this Note, the First Trust Deed or the Settlement Agreement. This Note shall be governed Lid. All payments or notices required or permitted in connection with this Note shall be in writing and made or given at the place and in the manner provided in the Settlement Agreement. Provided no Event of Default has occurred or exists,this Note shall be void, and of no effect, if. (1)the Payor performs.satisfactorily its obligation pursuant to the Settlement Agreement to pay, on or prior to the Due Date, the Annual Use Fees that are due and payable on the eighth (8th)through thirty-nth(39a')anniversaries of the Access 102 116169 .101 payable®n the eighth (8d')through thirty-ninth(39`x`) anniversaries ®f the Access Easement Start Date; ®r(2)the Utilities Easement has been terminated and the Access Easement is no longer used f®r Public Access. This Note is executed this_day of August 2010 at Moorpark, California. AE Properties, a California general partnership Eye Paul D. Burns,President Burns-pacific Construction, Inc., its general partner 116169 103 102 ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, TERMINATING DEVELOPMENT AGREEMENT NO. 1998-04 ADOPTED BY ORDINANCE NO. 250 AND ADOPTING DEVELOPMENT AGREEMENT NO. 2012-01 BY AND BETWEEN THE CITY OF MOORPARK AND A-B PROPERTIES FOR APPROXIMATELY 34.53 ACRES, NORTH OF THE UNION PACIFIC RAILROAD RIGHT-OF- WAY, WEST OF GABBERT ROAD WHEREAS, Section 65864 of the Government Code provides that cities may enter into contractual obligations known as Development Agreements with persons having equitable interest in real property for development of that property; and WHEREAS, Chapter 15.40 of the Moorpark Municipal Code contains procedures for adopting, administering, amending, and terminating Development Agreements; and WHEREAS, on December 16, 1998, the Moorpark City Council adopted Ordinance No. 250 (effective January 15, 1999), approving Development Agreement No. 1998-04 by and between the City of Moorpark and A-B Properties regarding approximately 34.53 acres, approximately 1,300 feet west of Gabbert Road and North of the Union Pacific Railroad Right-of-Way, effective on January 15, 1999; and WHEREAS, Development Agreement No. 1998-04 was recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584; and WHEREAS, A-B Properties has requested amendments to the subject Development Agreement to address terms for certain public improvements; and WHEREAS, on April 18, 2012, the City Council adopted Resolution No. 2012- 3098, directing the Planning Commission to study, hold a public hearing, and provide a recommendation to the City Council on this matter; and WHEREAS, on July 24, 2012, the Planning Commission adopted Resolution No. PC 2012-575, recommending to the City Council approval of amendments to certain terms of the Development Agreement; and WHEREAS, those recommended amendments have been formatted into Development Agreement No. 2012-01 as contained in Exhibit A to replace in its entirety the previously adopted Development Agreement 1998-04 for the December 19, 2012, regular meeting, with additional amendments as noted in the report to the City Council; and CC ATTACHMENT 4 104 WHEREAS, a duly noticed public hearing was held by the City Council on October 3, 2012, November 7, 2012, December 5, 2012, and December 19, 2012 to consider Development Agreement No. 2012-01 and to accept public testimony related thereto; and WHEREAS, the City Council has considered all points of public testimony relevant to the Development Agreement No. 2012-01 and has given careful consideration to the content of the new Development Agreement; and WHEREAS, changes to the project with Development Agreement No. 2012-01 do not result in new information or impacts that would require preparation of a new or subsequent environmental document under the California Environmental Quality Act. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby terminates Development Agreement No. 1998-04, as contained within Ordinance No. 250 and recorded by the County Recorder with the assigned document number 98-233584, between the City of Moorpark and A-B Properties. SECTION 2. The City Council of the City of Moorpark does hereby find as follows: A. Development Agreement No. 2012-01 is consistent with the General Plan as most recently amended. B. Development Agreement No. 2012-01 and the assurances that said agreement places upon the project are consistent with the intent and provisions of the Mitigated Negative Declaration adopted by City Council Resolution No. 2000-1714. C. Development Agreement No. 2012-01 is necessary to ensure the public health, safety and welfare. SECTION 3. The City Council hereby adopts Development Agreement No. 2012-01 (attached hereto) between the City of Moorpark, a municipal corporation, and A-B Properties, a California General Partnership, and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 4. Upon the effective date of this ordinance, the Community Development Director shall cause the property that is the subject of the Development Agreement to be identified on the Zoning Map of the City by the designation "DA" followed by the dates of the term of said Agreement. 105 SECTION 5. If any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 6. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 7. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED AND ADOPTED this 16th day of January, 2013. Janice S. Parvin, Mayor ATTEST: Maureen Benson, City Clerk Attachment: EXHIBIT A- Development Agreement No. 2012-01 106 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code Sec. 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND A-B PROPERTIES THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE SEC. 65868.5 107 DEVELOPMENT AGREEMENT This Development Agreement ("the Agreement") is made and entered into this day of , 20a-9_, by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City") and A-B Properties a California General Partnership(referred to hereinafter as "Developer"). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code section 65864 et seg. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within the City for the development of such property in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property"). 1.4. City has approved,,, OF iR the ^F^^°SS of approvOt General Plan Amendment No. 97-2("GP") and Zone Change No. 97-6 ("ZC"). The GP and ZC are collectively referred to as the "Project Approvals". 1.5. Development Agreement No. 1998-04, adopted by the City Council on December 16, 1998 through Ordinance No. 250, and recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584, is terminated upon the effective date of the enabling ordinance (Ordinance No. ) for this Agreement. 1.66. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. -5- 108 1.67. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon the development of the Property pursuant to the Project Approvals, this Agreement and any Subsequent Approvals (as defined in Section 5.3 of this Agreement) and to provide the public benefits and improvements specified in this Agreement. 1.78. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City as currently amended by Gencrol Plan AmendrneRt Ne 97 6 1.69. On NovernbeF 9, 1998 July 24, 2012, the Planning Commission of City commenced a duly noticed public hearing on this Agreement and at the conclusion of the hearing recommended approval of the Agreement. 1.610. On Nevember 19, 1 October 3, 2012, November 7, 2012, December 5, 2012, and December 19, 2012, the City Council of City ("City Council') commenced a duly noticed public hearing on this Agreement , and at the conclusion of the hearing approved the Agreement by Ordinance No. 250 ("the Enabling Ordinance"). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project area that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. -6- 109 3.2. Release Upon Transfer. Upon the sale or transfer of the Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the effective date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivers to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Propert y. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement 4.3 Building Standards. All construction on the Property shall adhere to the WRiferm Building Cede, *RGluding the FiFe Resistive Design Manual, the National Code, 1 I the niferm DIF „ bing GedO, I I the nifnrm all City building codes in effect at the time the plan check or permit is approved per Title 15 of the Moorpark Municipal Code and to any federal or state building requirements that are then in effect (collectively "the Building Codes"). 4.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. -7- 110 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later-adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. In furtherance of the Parties' intent, as set forth in this section, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of building units that can be built each year within the Project Area. However, nothing in this section shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals"; individually "a Subsequent Approval") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do -8- 111 not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City in City's sole discretion (collectively "City Laws"), except City Laws that.. (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals or this Agreement, (b) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (c) are not uniformly applied on a City-wide basis to all substantially similar types of development projects or to all properties with similar land use designations; or (d) control commercial rents. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire eight (8) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code section 66410 et seq., or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's DepaFtment of Community Development Department prior to the expiration of that Approval. Each such Subsequent Approval shall be -9- 112 deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification Of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for permit adjustments or modifications to PFojeGt Approvals and Subsequent Approvals. The approval or conditional approval of any such o"permit adiustment or modification shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement. 5.6. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. -10- 113 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. pay City a fee to be used far park within the Go" Moorpark. The amount of the fee he Nyenty_five rents ($.25)-W square foot of gross floor ar�he fee shall he adjusted ann a-14y J-TIWf�T a�f��a shall ruun� lnommenning one (1) year after the firs} building permit is issuedd within the PFojeGt Area by onI innronse in the Consumer PFise Index /GF4 until II fees have h en paid The GPI inr•rerrse shell he ide}ermined by using the information provided by the U.S. DepaFtment of ur,'cn�n�cc�rra-vc�e The /� for Bureau of Labor ���+�T all 1� 1r�_y��s1 I�TJ \11 rlt�h1n the Los ARgeles/AnaheirniRiverside rnetFGPGI0taR area during the Prior yeaf-. The GaIGUlation shall be Fnade using the rnenth whiGh is four (4) FnoRth6 the Gity GeunGil (e.g., Of approval GGGUFS in june, then the Menth of February is used tG GaIGUIate the inGrease). This fee Fnay be by City in its sole aR d unfettered rlisnretioR.Prior to the issuance of each building permit within the boundaries of the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). The amount of the Park Fee shall be fifty cents ($0.50) for each square foot of building area. 6.4. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, Developer shall pay City a development fee as described herein (the "Development Fee"). The Development Fee may be expended by City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Development Fee shall be Twenty One Thousand Dollars ($21,000.00) per acre of each lot on which the building is located. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Anaheim/Riverside metropolitan area during the prior year. The calculation shall be made using the -11- 114 month which is four (4) months prior to the month in which the Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). For all building permits issued for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), the Development Fee shall be $44,325 per acre and shall be adjusted annually commencing one (1) year after this date, beginning on January 1 2016 by the Consumer Price Index (CPI) using the information Provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/ Orange County metropolitan area during the prior year. The calculation shall be made during the month of August over the prior August. In the event there is a decrease in the CPI for annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.5. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, Developer shall pay City a traffic mitigation fee as described herein ("Citywide Traffic Fee"). The Citywide Traffic Fee may be expended by City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Citywide Traffic Fee shall be Eighteen Thousand Dollars ($18,000.00) per acre of each lot on which the use is located. Commencing on January 1, 2001, and annually thereafter, the Citywide Traffic Fee shall be increased to reflect the change in the State Highway RittCalifornia Department of Transportation Price Index for Selected Highway Construction Items for the previous twelve (12) month period that is t repened in the latest ��i issue of the Engineering Nes r• Reord-that is available on December 31 of the preceding year ("annual indexing"). In the event there is a decrease in the referenced Index for any annual indexing, the Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement 6.7. DeveelopeF agrees to pay 4ir Quality Fees, that are to he GaIGUlaterl by Cite at its sole _nr) unfettered discretion none istent with similar nro;ents -12- 115 Prior to the issuance of each building permit within the boundaries of the Property, Developer shall pay an Air Quality Fee of sixty-three cents ($0.63) for each square foot of office building area and twenty-eight cents ($0.28) for each square foot of industrial building area. The Air Quality Fee shall satisfy the Transportation System Management Fee requirement for the Project and may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. 6.8. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. 6.9. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Police Facilities Fees, Fire Facilities Fees, Library Facilities Fees, Art in Public Places fees, entitlement processing fees, and plan check and permit fees for buildings, and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole and unfettered discretion so long as said fee is imposed on similarly situated properties. 6.10. Gity feF the future 118 bypas6 along the eRtiFe length of the Rorth so GOR ntnr with a rorliuc as mete ..ed by the City at 46 sel -13- 116 URfettered—di6GFetaGa. The right of way shall be hU RdFed and twenty feet /120'\ elide along the north side of the nroneFty (east west "` \ �L VTTT'r-7TlTC.— C�TG GrJ�T-C�G�C seetien) and one hU Rdred feet /100'\ along the east side of the nhannel (north south eetiGR) plus aiyRese'ssany slope easemecRtS tG aGGGmmedate a level Fight of way of the required width and sIGpe + s .,lGRg the southeFR }��bGURdaFy. �}��Deyelep { het -agr�s to dedisa`te gcc-aGGes6 Fights f�-the pF°peft7 to t 'tar--t 118 bypass eXGent for+ne more then with i+h p ihlin streets. City shall have final ennrGyal of the Innotion e legal decnrintinn and use ef the crty effeFed foF deduGatffiGR. City may transfer its phis-eRt+ty: Prior to City Council action on any Subsequent Approval, or grading or the Property, whichever occurs first, Developer agrees to provide City an irrevocable offer of dedication to dedicate right-of-way at no cost to City for the future North Hills Parkway (also known as future 118 bypass) along the entire length of the north side of the Property and along the entire length of the west side of the Property east of the Gabbert Channel. The right-of-way shall be a minimum of one hundred (100) feet in width on both sections and shall also include necessary on-site and off-site slope easements in addition to this width to accommodate a grade-separated crossing of the existing railroad tracks south of the Property, along with turn radii and entry/exit lanes as determined by the City at its sole and unfettered discretion. Developer further agrees to dedicate access rights from the Property to the City along the entire North Hills Parkway frontage, except for private streets as part of the Tract Map for this Project. 6.11. Developer agrees that as part of any grading of the property the right- of-way for the future North Hills Parkway shall be graded per City direction. 6.12. Developer agrees to comply with all the provisions of the Hillside Management Ordinance (Chapter 17.38 of the Municipal Code) of the City. 6.13. Developer agrees to pay a pro-rata share, as determined by the City at its sole and unfettered discretion, for the funding and construction of the improvements identified in the Gabbert and Walnut Canyon Channels Deficiency Study. Developer also acknowledges that interim improvements may also be necessary to facilitate any new use or development of the property and Developer agrees that they shall be responsible for any such interim improvements as their sole responsibility, without credit of these costs, except as may be provided -14- 117 in the implementation plan for the Gabbert and Walnut Canyon Channels Deficiency Study. 6.14. Prior to any subdivision or new use of the property, Developer agrees to acquire and construct, at their sole cost, dedicated public access to the properties, as approved by the City Council. Secondary access to comply with City and public safety requirements shall also be provided at their sole cost. 6.15. Property provided that the PrE)jeGt AF G-11-IsteRt with the Fights of DeyelepeF URder this AgFeemen+.Developer agrees to terminate Development Agreement No 1998-04 adopted by the City Council on December 16 1998 through Ordinance No. 250 and recorded by the County Recorder on December 30 1998 with the assigned document number 98-233584. 6.16. Developer agrees not to request any concession, waiver, modification or reduction of any fee, regulation, requirement, policy or standard condition for any Subsequent Approval and further agrees to pay all fees imposed by City for future buildings, so long as said fees are also imposed in a similar manner on similar projects. 6.17. Developer shall grant, in a form acceptable to City, a conservation easement to retain that portion of the Property west of and including the Gabbert Canyon drain in a predominantly open space condition consistent with Civil Code Section 815 et se g., except for the following purposes: temporary construction (including temporary pumping needed for dewatering as part of any approved grading operations for the Property), landscape maintenance of manufactured slope areas, vegetation clearance within two hundred (200) feet of any structure for fire hazard reduction, revegetation and biological habitat enhancement required by City consistent with any Mitigation Monitoring Program, drainage conveyance, emergency access and extension of State Route 118. No excavation, drilling, extraction, pumping (excluding such pumping as may be needed for dewatering as part of approved grading operations), mining, or similar activity shall be allowed in any portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easement. The foregoing does not restrict the extraction of subsurface mineral resources by drilling from off the Property so long as the drilling apparatus and equipment are screened from view from all points within the City. Further, if the drilling site is not within the City, Developer -15- 118 agrees that before proceeding with any drilling it shall secure a use permit from the City which may include conditions ordinarily placed upon drilling opertations. Further, noise impacts from the drilling shall meet the same noise standards as placed on Industrial Planned Development Permits and there shall be no visible evidence or impacts on the ground surface of the Property: The conservation easement shall be recorded concurrently with the recordation of the first final subdivision map for the Property. 6.18. Prior to the effective .Date of the OFdenanne apprnvinn Zone Ghanne No 97 6 approval of a Final Map, Developer shall execute in favor of City and record in the Office of the County Recorder of the County of Ventura a Covenant Rrunning with the Land (Covenant) as set forth in Exhibit "B" attached hereto and incorporated herein to limit use of the Property. 6.19. DevelepeF agFees that as a GORdition of the City's S sentient�4pPFGyal fer the D�r p ef y Developer shall submit Gabbert Road rail -,resc�i hventy five (125) feet nneFtrh ef the OSSinn to fns F tFayel , Me eight (8) feet bike IaRes and two teR (10) fbot parkways iRG'usive e sidewalks (Gabbert Read FGvemeRtS). The s foFth��beft Read-F��fs�fe R s-must be appFeyed by tthe-C and end a-a-sur in amount and aF determined by the Gity in its sole and unfettered diSGFetmen-to guaFantee this-impmvement-. a provided prier to approval ff the fir �RnlTe�� Property onnU FFinn after the opeFatF1Fe-"date—of-this AgFeement.The Gabbert Read imnrnieFT�eRtS (40%) of the aGFeage of the total of all 10tS Greated by the reGGFdation of the first final map4GF thriTrreperty nvcocciUFFiiRg after the operative date of this Agreementcrt lR the event theme rode ceRts-reouiFed p Fsuant to-88ntin 6.22 of this Agreement are cnnstR!cted i i accepted by the City and open to the p� hlic that-eXGeedsr#9 eFGeeRtc(40%) of the-aGFeage of the total of all l04 ated by the record f the first final m for the RrnpeFt /Ef/+e/+ac�a.�.�r -v�--fe}rpn/°� }�cc*vrc^r �-�r-rrn-�r�-rrrrn-n�ra��vrZrra.. }��-�rvpera� 966.EFFf1?Q afteF tTe�7. Fatiye daate[l this Agreement, Lhe e 1LnptpU.CF ttr1-FfSp F by this SeGtion3hall not he renuirerl� to con ted by±he De„elnner. Developer agrees that prior to the issuance of a building permit for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), -16- 119 Developer shall: • Improve Gabbert Road from the intersection with Poindexter Avenue north to and including the intersection with the future North Hills Parkway. Improvements to Gabbert Road from Poindexter Avenue north to a point one-hundred and twenty-five (125) feet north of the railroad right-of-way shall include four (4) travel lanes, with bike lanes curbs gutters parkways, and sidewalks on each side of the street and widening of the rail crossing, all consistent with City plans to the satisfaction of the City Engineer/Public Works Director. • Improve North Hills Parkway along the project frontage from the easterly project boundary to and including the intersection with the future project access road on the west side of the Property. Improvements shall be made within the south side of the ultimate right-of-way north of the developable lots and within the entire ultimate right-of-way west of the developable lots to include half of the ultimate roadway not to exceed forty five (45) feet in width, to allow for two twelve (12) foot wide travel lanes, left turn lanes, and an eight (8) foot wide bike lane on the south/east side. Improvements shall also include curb gutter, parkway and sidewalk on the south/east side of the street and a median curb and temporary bike lane on the north/west side of the street consistent with City plans for the right-of-way improvements to the satisfaction of the City Engineer/Public Works Director. All public street improvements described above shall be designed and constructed at Developer's expense to provide for a 50-year life as determined by the City Engineer/Public Works Director. Surety for the improvements shall be provided by the developer to the City prior to approval of the Final Map in an amount and form determined by the City in its sole and unfettered discretion to guarantee these improvements. If the developer improves North Hills Parkway from Gabbert Road to the eastern project boundary prior to the City's planned improvement of this road developer shall obtain all necessary right-of-way and slope easements and shall design and construct the roadway with a minimum of thirty-two (32) feet of pavement and positive drainage to the satisfaction of the City Engineer/Public Works Director on this section of North Hills Parkway. Prior to opening this improvement to the public, Developer shall also improve Gabbert Road from a point one-hundred and twenty-five (125) feet north of the railroad right-of-way north to and including the North Hills Parkway intersection to have thirty-two (32) -17- 120 feet of pavement and positive drainage to the satisfaction of the City Engineer/Public Works Director. Developer recognizes that the City's improvement plans for Gabbert Road and North Hills Parkway include elevating Gabbert Road above its current grade and re-aligning the roadway near its intersection with North Hills Parkway. If Developer constructs the North Hills Parkway improvements to meet Gabbert Road at its existing grade as described above before the City improvements are constructed, Developer shall be responsible for any additional City construction costs to the North Hills Parkway between Gabbert Road and the Property as a result of the Developer's improvements as determined by the City Manager at his/her sole discretion. 6.20. Dram to Gety aGtllln OR the first Subseequ nt Approval for the Dron� r Developer shall provide a trafflo study to determine if sionalization of the irnrterrse inde)dei' Avecrr a is Reeled. D eF a that City at solo d unfettered disnre+inn may y'""" arrt�r-vrc�-u' �v't�a� �-vrsvrccrvir- trtira^ff�TG signal or nazi a fait share TrneRt attF a above iRterFse6��nr. C;onStr tine of the sigRal�Teq-or� _a the sa�etem the Gabber-t Road nt `" � t above, d d by the Git le and unfettered te-a$�refle sale d;SGreti6R.Prior to approval of the final map for Tract No. 5906 for the Property, Developer shall submit and gain approval from City Manager of an Implementation Plan. The Implementation Plan shall address the requirements for phasing and construction responsibilities of Developer and any successors including sureties for performance for all grading, construction of storm drains and utilities, private and public streets, and other private and public improvements on or offsite required by Tract 5906 and this Agreement. The Implementation Plan shall also address entities responsible and method of timing of guarantee for each component of Developer's obligations pursuant to Tract 5906 and this Agreement, and no portion of these improvements may be transferred to owners of any individual lots in Tract 5906. The approval of the Implementation Plan and any amendments thereto shall be at the City Manager's sole discretion. Prior to sale or transfer of ownership of any portion of Tract 5906, except individual lots, Developer shall seek City Manager approval of an amendment to the Implementation Plan to address the responsibilities of each entity_ 6.21. Developein 6hall GORStFUGt a thirty twe (32) feet wide payed aGGess (paPedo6 F o rl to the PFeperty to ,serve as ess -18- 121 Rt%aGvrr h tome a6 the lmnrnv emeRts-fefeferRGed-fit SeGtiOR 6.22 atl: G t S��Gh time the Improy in C Gtien 6.22 are �sfls#{eszed—A#���-as RTC-�,-o�er�er�ts-TT-oe opeRed to the p u b I i G the paved aGGeSS Fead sh a llll�Gcvvmea R PFGperty with the final IOGatiGR said paved aGGe iS reed to he deteFFnmRed by the Gity at its sole and UnfetteFed d'SVTet*nvrR.Thee paved Street but with nn rent Ilrement fnr GUrh gutter or Sidewalk evnept GUrbs that may he determiner) necessary to nrnyide fnr positive drainage z Developer shall design and construct at Developer's expense a thirty- two (32) foot wide paved access road on Southern California Edison property (paved access road) to the Property to serve as the primary access until such time as the Improvements referenced in Section 6.19 are constructed. At such time as the improvements in Section 6.19 are opened to the public, the paved access road shall become an emergency access only for the Property. The paved access road shall be located as described in the road, slope and drain easement grant from Southern California Edison Company to AB Properties, recorded on December 8, 2010 in the Office of the Recorder, County of Ventura by Instrument No. 20101208-00191903-0 1/24, and shall be constructed to City Standards for an industrial street but with no requirement for curb, gutter, sidewalk, streetlights, or landscaping Drainage improvements shall be provided as necessary, and slopes shall be landscaped to prevent erosion. At such time as the improvements in Section 6.22 are opened to the public, the paved access road shall be closed to the public. 6.22. eVGeedS Seyen�erGent (70%) of the asfeage- al of all IetS crcvccv��cr crv�T "`^y" S d by the reGGFrddation of the first fiTnTal Map fna DFopeFt nnG erring after operatic to of this Agre Map fl `' pw VQTTrir- ^,L�fLTYL�IG"[G�`T,yCTf1�T�TlieflTel"7T�ePe1�7l+TFTfUTT sau t8�ons-tr�}eted as snreet-emAending north from I-or, Angeles north of said railmad traGks (ImproyementS) within the area of the offer The nrelimina I improvement plans must he approved by the Gity and a suFety OR an-amoURt and form determined-by the Gity in i mfetF Gr tir)„ +^ ��arantee the m r�yem nts shall he provided late of this Agreement. PFior to issuaRGe of a building peFmitt QTTiFLS 'VfeCi�YY�C��FCCrRTTiGT'CI"TG-�IIT�rVrGT7TeF'FCJ�a T7 ar•reage of the total of all lots Greeted by the rer•ordatinn of the fir t final -19- 122 finaRGing plan that demenstFates the ability to fund the 'FRPFGVeM use of('i4, irI Troffin mnnieS. Prior to the recording of the Final Map for the Project, a Community Facilities District or other funding mechanism to the satisfaction of the City Council shall be established to provide funding for improvements to North Hills Parkway from the future eastern Property access road along the east-west section of North Hills Parkway to Gabbert Road and Gabbert Road from North Hills Parkway to a point one-hundred and twenty-five (125) feet north of the railroad right-of-way. A full or partial buyout in an amount and timing to the satisfaction of the City Council may substitute for the establishment of a district or other funding mechanism. Prior to the issuance of a building permit for any portion of the Property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), the North Hills Parkway undercrossing at the Railroad Right-of-Way immediately south of the Property shall be completed in a manner approved by the City. 7. City Agreements. 7.10 City shall use its best efforts to process plan checking and related processing for the project in an expedited manner. 7.2. City shall exempt this project from payment of the Gabbert Road/Casey Road Area of Construction (AOC) fees. 7.3. City agrees that upon receipt of a landowners' petition by developer and Developer's payment of a fee as determined necessary by City in its sole and unfettered discretion, City shall commence proceedings to form a Mello-Roos Community Facilities District ("District") and to incur bonded indebtedness to finance all or portions of the on site and off site public facilities, infrastructure and services that are required by this Agreement and Subsequent Approvals and that may be provided pursuant to the Mello-Roos Community Facilities Act of 1982 (the "Act"); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government -20- 123 Code Section 53321 and/or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The formation, type of assessment district (if City determines another type of assessment district other than District is more appropriate) and method and spread of assessment shall be at the City's sole and unfettered discretion. 7.4. If requested in writing by Developer and limited to City's legal authority, City shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer which are outside Developer's legal boundaries. The process shall generally follow Government Code Section 66457 et. seq. and shall include the obligation of Developer to enter into an agreement with City, guarantee by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, and City overhead expenses of fifteen percent (15%) on all out-of-pocket costs and City staff costs. 7.5 City shall refund Developer twelve-thousand six hundred dollars ($12,600.00) collected to process Lot Line Adjustments 2010-01 through 2010-07 by crediting this amount to the Development Deposit Fund for this project. 7.6 During project construction City agrees to allow the on-going import, stockpiling and use of recycled concrete and asphaltic concrete material for road base for the private streets within the property when in compliance with all Moorpark Municipal Code requirements and all other applicable City Council polices based on the issuance of a Stockpiling Permit and up to four (4) temporary use permits, for each crushing operation of uncrushed material not to exceed thirty (30) days in length for crushing up to ten-thousand (10,000 tons) of uncrushed material and subiect to the following terms: • Hauling and crushing operations shall be limited to 7:00 AM to 5:00 PM Monday through Friday excluding City Holidays. The City Engineer/Public Works Director may impose stricter hours on hauling as needed to avoid impacts to peak-hour traffic. • The stockpiling location shall be subject to approval by the City Engineer/Public Works Director with proper surety for removal of material. • Stockpiling shall not exceed ten-thousand (10,000) tons of material at any time. -21- 124 • Prior to bringing any material to the stockpiling location, a report on the source and quantity shall be provided to the satisfaction of the City Engineer/Public Works Director to ensure the material is suitable for recycling and consistent with the terms of the Development Agreement and Stockpiling Permit • All stockpiling under the permit shall be removed prior to the issuance of a building permit for any portion of the Property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets). • The recycled road base shall meet acceptable green book standards to the satisfaction of the City Engineer/Public Works Director. 7.7 City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map, development permit, or development agreement with one or more other developers. For road improvements, this shall include the Gabbert Road improvements from the intersection with Poindexter Avenue north to a point one-hundred and twenty-five (125) feet north of the railroad right-of-way as specified in Section 6.19. 7.8 In the event City has not initiated construction of the North Hills Parkway undercrossing of the railroad right-of-way in a time as required by Section 6.22 prior to issuance of a building permit for any portion of the property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), City shall allow Developer to construct undercrossing and City shall reimburse Developer for expenses as agreed upon by City and Developer prior to construction in a manner as allowed by law. 7.9 City agrees to terminate Development Agreement No. 1998-04, adopted by the City Council on December 16, 1998 through Ordinance No. 250, and recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City in its sole and unfettered discretion. -22- 125 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by the Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of the Developer hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, and Developer's obligations and restrictions on development as provided for in Sections 6.19, 6.20, 6.21 and 6.22 of this Agreement shall be excused during any period of "Excusable Delay", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot, (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement -23- 126 and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it: (a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein, in accordance with Section 20 hereof.E��RGtiGe of violation hall s+.,+° with sn°nifinity that i+ is niyon - 3 ion+ to this 6eGtien of the Agreemen+ r the nature o f & ol�'T"'y°rl hrro�ho�_+h° manner in which +h° hr°�+nh rrr �i� „'7ccr-orc u -cna.�rrarrrT ccrvr� rr�rc� be si s GU Fed. The rnrGt*GeshaIl l be deemed given the date that + nrcnlly deliy Fed nr nn the third day felllowinn the day, after itis deposited in the WRited States moil in aGGOrdanGe w with 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties -24- 127 agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein notice and an opportunity to cure shall be provided pursuant to subsection 11.3 herein. The remedies for breach of the Agreement by City shall be injunctive relief and/or specific performance. The remedies for breach of the Agreement by the Developer shall be injunctive relief and/or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.3, 6.41 6.5, 6.6, 6.7,-Gr 6.91 6.10, 6.11, 6.12,-OF 6.191 eF 6.20, er--6.21, or 6.22 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ("Financier"), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. -25- 128 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of QFdinanGe No. 59Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. 15.1. Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement. 16. Indemnification. The Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or any -26- 129 provision thereof or the Project Approvals or any Subsequent Approvals or _modifications thereto or any other subsequent entitlements for the project including any related environmental approval. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until a building permit is issued and all fees identified in this agreement are paid for the last developable lot in the Project whichever comes last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. -27- 130 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Chapter 15.30 of the Moorpark Municipal Code of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. -28- 131 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof.Att�eYs' fees undeFthi6 6estien shall iRGlude atteMa„6' fee into any judgment on this Agreement 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, Developer° B Drono.+ioc and City of Moorpark have each executed this Development Agreement on the date first above written. CITY OF MOORPARK Janice S. Parvin Mayor OWNER/DEVELOPER A-B Properties By: Paul D. Burns General Partner -29- 132 EXHIBIT A LEGAL DESCRIPTION To be provided. A-B PROPERTIES ORIGINAL DA WITH REVISIONS 133 EXHIBIT B COVENANT RUNNING WITH THE LAND THIS COVENANT is made this day of , by and between the-A-13 Properties (Covenantors") and the City of Moorpark ("Covenantee"). WHEREAS, Covenantor is the owner of certain real property (500.0.340.2-2 ^d 23)-consisting of approximately 34.53 acres, approximately 1,300 feet west of Gabbert Road and North of the Union Pacific Railroad Right-of-Way in the City of Moorpark, County of Ventura, more particularly described in Exhibit "A" attached hereto and made a part hereof ("the Covenantor Property"); and WHEREAS, Covenantee is the owner of certain real property at 799 Moorpark Avenue, in the City of Moorpark, County of Ventura, more particularly described in Exhibit "B" attached hereto and made a part hereof ("the Covenantor Property"); and WHEREAS, Covenantee rezoned the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2) through Ordinance No. 249 on December 16, 1998, but for the concern that some of the uses that are presently, or may subsequently be, allowed by right or permit in the GP-DM-2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; WHEREAS, Covenantor seeks to have the Govenanters o��rE�c ened from wvcnF,-nvr� cv„�a-n-o,n AgF;nU ltura!EXnlu live (AE) to Limited Industrial (M 2) but acknowledges that some of the uses that are presently, or may subsequently be, allowed by right or permit in the M-2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; and NOW, THEREFORE, in consideration of the mutual promises of the parties to this Covenant, each to the other as Covenantor and Covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follows: 134 B-1 1. Covenantee agrees tG adopted an-e Ordinance No. 249 rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2); 2. Covenantor agrees that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2). Subject to the following restrictions in addition, and superseding the M-2 regulations. A. Primary uses, except agricultural crops, shall be conducted within completely enclosed buildings and metal faced buildings shall not be allowed as principal buildings. Outside storage and operations shall not be allowed as primary uses, only accessory outside storage shall be allowed, subject to the sannepermitting requirements (Administrative Permit) and limitations in the M-2 zone (in conjunction with an approved use and screened by an eight (8) foot high masonry wall matched to the structur the PFiRGipaI building or the rear two thirds of the nroneFty, Whinho..��_mrv:e , , B. The following uses shall not be allowed as a primary use: • Manufacturing - Batteries • Manufacturing - Metal industries, primary; Rolling, drawing, and extruding • Manufacturing - Rubber and plastics products including tire retreading and recapping • Manufacturing - Cement, concrete and plaster, and product fabrications • Self-storage or Mmini-storage • Recreational vehicle storage Signs Freestanding off site adyerti inr �innc • Distribution and Ttransportation facilitiesseFVmGes Tr„^U stvFage, overnight 3. Covenantor and Covenantee agree that, commencing on the effective date of the Limited 1ndustFial (M 2 Development Agreement, all uses specified in Paragraph 2.13. hereof that are presently allowed or that at any time in the future may be allowed in the M-2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from the Covenantors Property to the Covenantee Property for the benefit of the Covenantee Property. B-2 135 4. Covenantors and Covenantee agree that from time to time Covenantee may substitute any other property owned by Covenantee on the date of the substitution for the Covenantee Property ("the Substitute Covenantee Property") without the consent of Covenantor by the recordation of an amendment to this Covenant. The amendment shall describe the Substitute Covenantee Property and shall provide that, commencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof that are presently allowed, or that at any time in the future may be allowed, in the M-2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from that Covenantor Property to the Substitute Covenantee Property for the benefit of the Substitute Covenantee Property. 5. All of the covenants, restrictions, and limitations set forth herein shall run with the Covenantee Property and the Covenantor Property and shall benefit and bind all persons, whether natural or legal, having or acquiring any right, title, or interest in any portion of the Covenantee Property or the Covenantor Property. Each grantee of a conveyance or purchaser under a contract of sale or similar instrument that covers any right, title, or interest in or to any portion of the Covenantee Property or the Covenantor Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefited by, all of the covenants, restrictions and limitations set forth herein. 6. Nothing in this Covenant shall be construed so as to limit the right of Covenantee to rezone, or the right of Covenantor to petition Covenantee to rezone, the Covenantor Property in the future. 7. This Covenant shall remain in full force and effect until such time as an ordinance rezoning the Covenantor Property from AgF;GU!tural—€XGl (ems` to Limited Industrial (M-2) to another zone designation becomes effective. 8. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate a covenant, restriction or limitation hereof. The prevailing party shall be entitled to recover such attorneys' fees and court costs as it reasonably incurs in such a proceeding. 9. In the event any provision of this Covenant is found to be invalid or unenforceable in any proceeding at law or in equity, such finding shall not affect the other provisions of this Covenant, which shall remain in full force and effect. B-3 136 10. Either party may record in the office of the Recorder of Ventura County this Covenant or any amendment hereto specified in Paragraph 4 hereof without the consent of the other party. IN WITNESS WHEREOF, Covenantor and Covenantee have executed this Covenant on the date first above written COVENANTORS COVENANTEE A-B PROPERTIES CITY OF MOORPARK B-4 137 EXHIBIT C To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: A-B Properties ATTN: Paul Burns C-1 138 SUPPLEMENTAL ITEM 8.A. ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, TERMINATING DEVELOPMENT AGREEMENT NO. 1998-04 ADOPTED BY ORDINANCE NO. 250 AND ADOPTING DEVELOPMENT AGREEMENT NO. 2012-01 BY AND BETWEEN THE CITY OF MOORPARK AND A-B PROPERTIES FOR APPROXIMATELY 34.53 ACRES, NORTH OF THE UNION PACIFIC RAILROAD RIGHT-OF- WAY, WEST OF GABBERT ROAD WHEREAS, Section 65864 of the Government Code provides that cities may enter into contractual obligations known as Development Agreements with persons having equitable interest in real property for development of that property; and WHEREAS, Chapter 15.40 of the Moorpark Municipal Code contains procedures for adopting, administering, amending, and terminating Development Agreements; and WHEREAS, on December 16, 1998, the Moorpark City Council adopted Ordinance No. 250 (effective January 15, 1999), approving Development Agreement No. 1998-04 by and between the City of Moorpark and A-B Properties regarding approximately 34.53 acres, approximately 1,300 feet west of Gabbert Road and North of the Union Pacific Railroad Right-of-Way, effective on January 15, 1999; and WHEREAS, Development Agreement No. 1998-04 was recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584; and WHEREAS, A-B Properties has requested amendments to the subject Development Agreement to address terms for certain public improvements; and WHEREAS, on April 18, 2012, the City Council adopted Resolution No. 2012- 3098, directing the Planning Commission to study, hold a public hearing, and provide a recommendation to the City Council on this matter; and WHEREAS, on July 24, 2012, the Planning Commission adopted Resolution No. PC 2012-575, recommending to the City Council approval of amendments to certain terms of the Development Agreement; and WHEREAS, those recommended amendments have been formatted into Development Agreement No. 2012-01 as contained in Exhibit A to replace in its entirety the previously adopted Development Agreement 1998-04 for the December 19, 2012, regular meeting, with additional amendments as noted in the report to the City Council; and CC ATTACHMENT 4 WHEREAS, a duly noticed public hearing was held by the City Council on October 3, 2012, November 7, 2012, December 5, 2012, and December 19, 2012 to consider Development Agreement No. 2012-01 and to accept public testimony related thereto; and WHEREAS, the City Council has considered all points of public testimony relevant to the Development Agreement No. 2012-01 and has given careful consideration to the content of the new Development Agreement; and WHEREAS, changes to the project with Development Agreement No. 2012-01 do not result in new information or impacts that would require preparation of a new or subsequent environmental document under the California Environmental Quality Act. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council hereby terminates Development Agreement No. 1998-04, as contained within Ordinance No. 250 and recorded by the County Recorder with the assigned document number 98-233584, between the City of Moorpark and A-B Properties. SECTION 2. The City Council of the City of Moorpark does hereby find as follows: A. Development Agreement No. 2012-01 is consistent with the General Plan as most recently amended. B. Development Agreement No. 2012-01 and the assurances that said agreement places upon the project are consistent with the intent and provisions of the Mitigated Negative Declaration adopted by City Council Resolution No. 2000-1714. C. Development Agreement No. 2012-01 is necessary to ensure the public health, safety and welfare. D. The Mitigated Negative Declaration adopted by the City Council on March 15, 2000 by Resolution No. 2000-1714 for Tentative Tract Map No. 5147 is the appropriate and applicable environmental document for Development Agreement No. 012-01 and no further or additional environmental review is required pursuant to ection 15162 of the State CEQA Guidelines. Specifically, there are no substantial anges to the project from what was evaluated in the previously adopted Mitigated egative Declaration that would have required major revisions to the Mitigated Negative eclaration. This is because the project involves the same property with the same umber of lots and similar anticipated uses as was previously evaluated. There are no bstantial changes with respect to the circumstances under which the project is undertaken in that the surrounding land uses have not changed from the time the Mitigated Negative Declaration was first adopted. Lastly, no new information of substantial importance has been identified that would result in new or more sever environmental effects or changes to mitigation measures or alternatives. SECTION 3. The City Council hereby adopts Development Agreement No. 2012-01 (attached hereto) between the City of Moorpark, a municipal corporation, and A-B Properties, a California General Partnership, and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 4. Upon the effective date of this ordinance, the Community Development Director shall cause the property that is the subject of the Development Agreement to be identified on the Zoning Map of the City by the designation "DA" followed by the dates of the term of said Agreement. SECTION 5. If any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 6. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 7. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED AND ADOPTED this 16th day of January, 2013. Janice S. Parvin, Mayor ATTEST: Maureen Benson, City Clerk Attachment: EXHIBIT A - Development Agreement No. 2012-01 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code Sec. 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND A-B PROPERTIES THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE SEC. 65868.5 DEVELOPMENT AGREEMENT This Development Agreement ("the Agreement") is made and entered into this day of , 2049_, by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City") and A-B Properties a California General Partnership(referred to hereinafter as "Developer"). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code section 65864 et seg. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within the City for the development of such property in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property"). 1.4. City has approved, ^r is an the PFOGess of apprevin General Plan Amendment No. 97-2("GP") and Zone Change No. 97-6 ("ZC"). The GP and ZC are collectively referred to as the "Project Approvals". 1.5. Development Agreement No. 1998-04, adopted by the City Council on December 16 1998 through Ordinance No. 250, and recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584, is terminated upon the effective date of the enabling ordinance (Ordinance No. ) for this Agreement. 1.56. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. -5- 1.67. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon the development of the Property pursuant to the Project Approvals, this Agreement and any Subsequent Approvals (as defined in Section 5.3 of this Agreement) and to provide the public benefits and improvements specified in this Agreement. 1.7-8. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City as currently amended by General Plan AmeRdrnent N9.97 6 1.69. On November 9, July 24, 2012, the Planning Commission of City commenced a duly noticed public hearing on this Agreement and at the conclusion of the hearing recommended approval of the Agreement. 1.310. On October 3, 2012, November 7, 2012, December 5, 2012, and December 19, 2012, the City Council of City ("City Council") commenced a duly noticed public hearing on this Agreement Whinh wa nnntin G to DeGemhor 2, 1998, and at the conclusion of the hearing approved the Agreement by Ordinance No. 2�50_._,_ ("the Enabling Ordinance"). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project area that has been fully developed in accordance with the Project Approvals and this Agreement. 11. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. -6- 3.2. Release Upon Transfer. Upon the sale or transfer of the Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the effective date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivers to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement 4.3 Building Standards. All construction on the Property shall adhere to toe IQInifArm B uildiRg CArlo inrli Jinn the Fire Resistive Design MaR Ial, the NatiE)Ral_QeGtFiG+nl CArlo the Uniform Plumbing Cede the ZIJnifGFrn A—h-aie.rn t of Dann us; R,-i�mldiRgSi,, the I Inifnrm GArlo fAr Building VrrrTu ('nnseR�atiA�Td the Uniform AdmiRistFatmve eall City building codes in effect at the time the plan check or permit is approved per Title 15 of the Moorpark Municipal Code and to any federal or state building requirements that are then in effect (collectively "the Building Codes"). 4.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. -7- 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later-adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment, except as provided for in this Agreement. In furtherance of the Parties' intent, as set forth in this section, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of building units that can be built each year within the Project Area. However, nothing in this section shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals"; individually "a Subsequent Approval") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do -8- not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City in City's sole discretion (collectively "City Laws"), except City Laws that: (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals or this Agreement; (b) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (c) are not uniformly applied on a City-wide basis to all substantially similar types of development projects or to all properties with similar land use designations; or (d) control commercial rents. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire eight (8) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code section 66410 et seq., or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map, shall be one 0) year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's DepaFtMeRt e —Community Development Department prior to the expiration of that Approval. Each such Subsequent Approval shall be -9- deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification Of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for +aerpermit adjustments or modifications to PFejeG+ n.,pFeyals aR Subsequent Approvals. The approval or conditional approval of any such MiRsrpermit adjustment or modification shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement. 5.6. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. -10- 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. As Gnrnrdt,on of the iss„anGe of eaGh building permit, shall , pay Gity a fee to be used far paFk improvements within the Gity of Meerparh The amount of the fee shall be hventy fide Gents ($.25)-W square foot of grew flo�area. The fee Shall he adju6t (GOmmen ne (1) year aft first b �ildinn permit is issued Within lyV7TTTGTf GZ1TZtfC� �C�7TiTIQITT��7GTTfiC'TS7TJF�fffT the Drnient Area by ;e dn the Consumer Dry Index /('DI\ until all ecs-hn�h . The GPI ansrease shall he determined hi inn the information provided by the U.S. Department of Labor, R1,rea, of Labor C�istins for ��rhan �S�,mers within the I �ITrGT(F-4r- 77C7T-� ITCf�J, -F+f'l7FT'T- during Angele s/Anahe1m e'Tsidee mrreetiepelitaan area during prier sec- The Ga!GU!at*E)R shall be made using the menth whiGh is four (4) months print to the month in which the Development Agreement is appFeved hi tth- City GEM Annil (e.g., if appreval oGGI Ars in IUpe they the month Gf February is used W GaIGUIate the rae-Oasre).This fee may be expended by Gity in its sole and unfettered discretion prior to the issuance of each building permit within the boundaries of the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). The amount of the Park Fee shall be fifty cents ($0.50) for each square foot of building area. 6.4. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, Developer shall pay City a development fee as described herein (the "Development Fee"). The Development Fee may be expended by City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Development Fee shall be Twenty One Thousand Dollars ($21,000.00) per acre of each lot on which the building is located. The fee shall be adjusted annually (commencing one (1) year after the first building permit is issued within the Project Area by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Anaheim/Riverside metropolitan area during the prior year. The calculation shall be made using the -11- month which is four (4) months prior to the month in which the Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). For all building permits issued for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), the Development Fee shall be $44,325 per acre and shall be adjusted annually commencing one (1) year after this date, beginning on January 1, 2016, by the Consumer Price Index (CPI) using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/ Orange County metropolitan area during the prior year. The calculation shall be made during the month of August over the prior August. In the event there is a decrease in the CPI for annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.5. As a condition of the issuance of each building permit for any use within the boundaries of the Project Area, Developer shall pay City a traffic mitigation fee as described herein ("Citywide Traffic Fee"). The Citywide Traffic Fee may be expended by City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Citywide Traffic Fee shall be Eighteen Thousand Dollars ($18,000.00) per acre of each lot on which the use is located. Commencing on January 1, 2001, and annually thereafter, the Citywide Traffic Fee shall be increased to reflect the change in the State Highway California Department of Transportation Price Index for Selected Highway Construction Items for the previous twelve (12) month period the reported in the latest issue of the Engineering News, Reoorrt that is available on December 31 of the preceding year ("annual indexing"). In the event there is a decrease in the referenced Index for any annual indexing, the Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement 6 Developer L s to pa Air Quality Fees, that ore to he GaIn�ipd-by City at its sole and unfettered discretion nonsistent with similar nroients in the Gity as a nondition an eanh Subsequent pproyal within the -12- be indaries of the Drni°nea_T The Air Quality Fees may be expended by T{�in its solo dicnroti s ens and` t mitigA o residual DrE)iont air quality imnantc Prior to the issuance of each building permit within the boundaries of the Property, Developer shall pay an Air Quality Fee of sixty-three cents ($0.63) for each square foot of office building area and twenty-eight cents ($0.28) for each square foot of industrial building area. The Air Quality Fee shall satisfy the Transportation System Management Fee requirement for the Project and may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. 6.8. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. 6.9. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Police Facilities Fees, Fire Facilities Fees, Library Facilities Fees, Art in Public Places fees, entitlement processing fees, and plan check and permit fees for buildings, and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole and unfettered discretion so long as said fee is imposed on similarly situated properties. 6.10. the Ppep whinhever g � FS first Dey nei- agrees to piceyide City rrr� vpeF�F�wrnvnc vcrvC�crror-rrrs�v�� �qr 7 Gity for the futuFe 118 bypass along the entire length Of the ReFth side of the property, along the side hheFt Ghannel and a n,��p , east ��,T-�,n�-a as determined by the at its sole and -13- URTettered Ereti r � �R Fight of hall � hundred ndred and itw y feet (120') "n �thhe ReFth e f the property (east west section) and one hi Rdred feet (100') along the east side of the nhannel (north south centien) plus aRy'--ReGesssaFy cry— slope easerneRtS tG aGGOmrnodate a level right_of_way of the required width th an clone t,raGka along the coutheFR hoi Rdarni Deyeleper further agrees to dediGate ess Fights frem the nronerTty to the f City er the 118 bypass eXG nt for no more then one (1) approved iRtT�JerrseeGtOGR with paviiv ?tFeets. G�ty shall have fin the�veation legal decnrin�n and sJe_f "� nronerFofffered fed dedication Grity may transfers its 0Rte rest ins the nronert�fter aGGep Prior to City Council action on any Subsequent Approval, or grading or the Property, whichever occurs first, Developer agrees to provide City an irrevocable offer of dedication to dedicate right-of-way at no cost to City for the future North Hills Parkway (also known as future 118 bypass) along the entire length of the north side of the Property and along the entire length of the west side of the Property east of the Gabbert Channel. The right-of-way shall be a minimum of one hundred (100) feet in width on both sections and shall also include necessary on-site and off-site slope easements in addition to this width to accommodate a grade-separated crossing of the existing railroad tracks south of the Property, along with turn radii and entry/exit lanes as determined by the City at its sole and unfettered discretion. Developer further agrees to dedicate access rights from the Property to the City along the entire North Hills Parkway frontage, except for private streets as part of the Tract Map for this Project. 6.11. Developer agrees that as part of any grading of the property the right- ( of-way' for the future 118 bypassNorth Hills Parkway shall be graded per City direction. 6.12. Developer agrees to comply with all the provisions of the Hillside Management Ordinance (Chapter 17.38 of the Municipal Code) of the City. 6.13. Developer agrees to pay a pro-rata share, as determined by the City at its sole and unfettered discretion, for the funding and construction of the improvements identified in the Gabbert and Walnut Canyon Channels Deficiency Study. Developer also acknowledges that interim improvements may also be necessary to facilitate any new use or development of the property and Developer agrees that they shall be responsible for any such interim improvements as their sole responsibility, without credit of these costs, except as may be provided -14- 9 in the implementation plan for the Gabbert and Walnut Canyon Channels Deficiency Study. 6.14. Prior to any subdivision or new use of the property, Developer agrees to acquire and construct, at their sole cost, dedicated public access to the properties, as approved by the City Council. Secondary access to comply with City and public safety requirements shall also be provided at their sole cost. 6.15. Developer agrees to not eppese GFeatiGR of a redevelopment Drniont Area (a defined by applinahle State law) e in any part of the DrepeFty pmvided that the DroieeGt Are r--eensist�n�with the Fights a DevelepeT YRder this Agreement Developer agrees to terminate Development Agreement No. 1998-04, adopted by the City Council on December 16, 1998 through Ordinance No. 250, and recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584. 6.16. Developer agrees not to request any concession, waiver, modification or reduction of any fee, regulation, requirement, policy or standard condition for any Subsequent Approval and further agrees to pay all fees imposed by City for future buildings, so long as said fees are also imposed in a similar manner on similar projects. 6.17. Developer shall grant, in a form acceptable to City, a conservation easement to retain that portion of the Property west of and including the Gabbert Canyon drain in a predominantly open space condition consistent with Civil Code Section 815 et seg., except for the following purposes: temporary construction (including temporary pumping needed for dewatering as part of any approved grading operations for the Property), landscape maintenance of manufactured slope areas, vegetation clearance within two hundred (200) feet of any structure for fire hazard reduction, revegetation and biological habitat enhancement required by City consistent with any Mitigation Monitoring Program, drainage conveyance, emergency access and extension of State Route 118. No excavation, drilling, extraction, pumping (excluding such pumping as may be needed for dewatering as part of approved grading operations), mining, or similar activity shall be allowed in any portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easement. The foregoing does not restrict the extraction of subsurface mineral resources by drilling from off the Property so long as the drilling apparatus and equipment are screened from view from all points within the City. Further, if the drilling site is not within the City, Developer -15- agrees that before proceeding with any drilling it shall secure a use permit from the City which may include conditions ordinarily placed upon drilling opertations. Further, noise impacts from the drilling shall meet the same noise standards as placed on Industrial Planned Development Permits and there shall be no visible evidence or impacts on the ground surface of the Property: The conservation easement shall be recorded concurrently with the recordation of the first final subdivision map for the Property. 6.18. Prior to the effentive date of the 0Fdipapne a. . ling Zone Ghapge Ale 97-6approval of a Final Map, Developer shall execute in favor of City and record in the Office of the County Recorder of the County of Ventura a Covenant Rrunning with the Land (Covenant) as set forth in Exhibit "B" attached hereto and incorporated herein to limit use of the Property. 6.19. —DevelopeF agFees, that as a GORditien of the Gi y'° apprrovaref the first ,went AppFeval for the Property, D-yyeloper shall submit twefli five (125) feet north of the rail GFOSGing to four travel lanes two eight (8) feet bike es and nve f t parkways inGl save e sidewalks (Gabbert eFaeF�—the purr? the Gabbert Roar) must he approved by the Gity anrd a surety in an arneunt and form determined by the ity on its sole and I lnfettered d�Tetien t�'�T �T1"TTT7 s im meRt "#'all he nrn�iided prior to C tal this Map ��,for T�DPnn after the operative da ttiis "tgFeeF eRt.. The Gabbert Read impFevements shall enon Gnterd prior to issuance of a building M for any portion of the PFepeFty that evneerds forth percent (40%) of the acreage ef_the total of all lots GFeetpdythe reGOFdatien of the first final map for the Prop after"t"h"e ep atiye a this 4 reeme t the tTT��T°P «�,�er�i��d date f}i��g,�T�ra�l n� Improvements ant to Cep 22 of this eue ��er�eatsr-Fegu+Fed- a���t+ea-6.��1� Agreement are r•onstF inter! aGGepterd by the Gity and open to the pl IhliG r t#at-exceeds forty geFeent (40%) of the aGFeage_of the of aII lots created—by the rest-$f the first final rna►pppfor mothe_IPpep Fty GGG Irring afteF the eperat�„Xiye date of this Agreement,t!IGTI-C7TG )4ernents eequi.rrerd by this Cen+inn 6.19 shall n� r be Fequ1CerJ�c C�&tFUGted h�ca by the. Developer. Developer agrees that"p1r`iio�r to the issuance of a building permit for any portion of the Property that exceeds forty percent (40%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), -16- 3 3 Developer shall: • Improve North Hills Parkway along the project frontage from the easterly project boundary to and including the intersection with the future project access road on the west side of the Property. Improvements shall be made within the south side of the ultimate right-of-way north of the developable lots and within the entire ultimate right-of-way west of the developable lots to include half of the ultimate roadway not to exceed forty five (45) feet in width, to allow for two twelve (12) foot wide travel lanes, left turn lanes, and an eight (8) foot wide bike lane on the south/east side. Improvements shall also include curb, gutter, parkway and sidewalk on the south/east side of the street and a median curb and temporary bike lane on the north/west side of the street consistent with City plans for the right-of-way improvements to the satisfaction of the City Engineer/Public Works Director. All public street improvements described above shall be designed and constructed at Developer's expense to provide for a 50-year life as determined by the City Engineer/Public Works Director. Surety for the improvements shall be provided by the developer to the City prior to approval of the Final Map in an amount and form determined by the City in its sole and unfettered discretion to guarantee these improvements. If the developer improves North Hills Parkway from Gabbert Road to the eastern project boundary prior to the City's planned improvement of this road, developer shall obtain all necessary right-of-way and slope easements and shall design and construct the roadway with a minimum of thirty-two (32) feet of pavement and positive drainage to the satisfaction of the City Engineer/Public Works Director on this section of North Hills Parkway. Prior to opening this improvement to the public, Developer shall also improve Gabbert Road from a point one-hundred and twenty-five (125) feet north of the railroad right-of-way north to and including the North Hills Parkway intersection to have thirty-two (32) feet of pavement and positive drainage to the satisfaction of the City Engineer/Public Works Director. -17- Developer recognizes that the City's improvement plans for Gabbert Road and North Hills Parkway include elevating Gabbert Road above its current grade and re-aligning the roadway near its intersection with North Hills Parkway. If Developer constructs the North Hills Parkway improvements to meet Gabbert Road at its existing grade as described above before the City improvements are constructed, Developer shall be responsible for any additional City construction costs to the North Hills Parkway between Gabbert Road and the Property as a result of the Developer's improvements as determined by the City Manager at his/her sole discretion. 6.20. Pier to Gity action nn the first Subsequent AnnrnYal for the Dr _ Developer shall provide a traffln study to determine if sionalizatiop of the »n,teFseGt+on--of the Gbbert Road/Roipde)deF Ayenii? nom odd Developer agrees that Gity at its sole and i Rfettered discretion may traffic signal or pay a fair share payrn p the 7eve intersey+tinn (`nnstrUntien of the signal if re�T� all GGG �r at the came time as- the runrT an--vav'crr �rTC�cn-rlc-crrr� r'bb � S inn 6.19, above, or sU Gh later date as determined by the Git�y Coy nG l at sole and i unfettered d+ssretion.Prior to approval of the final Tmap for Tract No. 5906 for the Property, Developer shall submit and gain approval from City Manager of an Implementation Plan. The Implementation Plan shall address the requirements for phasing and construction responsibilities of Developer and any successors including sureties for performance for all grading, construction of storm drains and utilities, private and public streets, and other private and public improvements on or offsite required by Tract 5906 and this Agreement. The Implementation Plan shall also address entities responsible and method of timing of guarantee for each component of Developer's obli ations pursuant to Tract 5906 and this Agreement, and no portion of these improvements may be transferred to owners of any individual lots in Tract 5906. The approval of the Implementation Plan and any amendments thereto shall be at the City Manager's sole discretion. Prior to sale or transfer of ownership of any portion of Tract 5906, except individual lots, Developer shall seek City Manager approval of an amendment to the Implementation Plan to address the responsibilities of each entity. 6.21. Developer shall nonstn v+t a thirty two (32) feet wide paved anness rnarl (paPrl�� nom6 road) tte the Drnnerty to serve as the primary aroess {Rtil SUEh time as the ImprepyerneRtS FefeFenncc°v-iTr SeeGtion 6.22 GenStFUGted At s� Gh time a5 the ImpreveriT�s in Cention 22 are �c«avrr-rn�n� �rrvcv rr ��arc opened to the puhlin the,ved—a6oe6s read shall annme apR -18- i 3 3 3 emergency ann� only feFthe PFoF rh�The paved aGGess marl he looated generally following the existing unpaved anness Fead to the PFoperty with the final IGGatien 1paved µ av�' aGGe^,. ss Tend to be ddeteTITI7ned by the City at its sole and L infetleFed dl�tet*nn The paved +Feet but woth no Feq firecrnen+ far nUFh gutter, or sidewalk evnep+ G �Fhs e e that may be determined neGessary te previde far pesitive drainage Developer shall design and construct at Developer's expense a thirty- two (32) foot wide paved access road on Southern California Edison property (paved access road) to the Property to serve as the primary access until such time as the Improvements referenced in Section 6.19 are constructed. At such time as the improvements in Section 6.19 are opened to the public, the paved access road shall become an emergency access only for the Property. The paved access road shall be located as described in the road, slope and drain easement grant from Southern California Edison Company to AB Properties, recorded on December 8, 2010 in the Office of the Recorder, County of Ventura by Instrument No. 20101208-00191903-0 1/24, and shall be constructed to City Standards for an industrial street but with no requirement for curb, gutter, sidewalk, streetlights, or landscaping. Drainage improvements shall be provided as necessary, and slopes shall be landscaped to prevent erosion. At such time as the improvements in Section 6.22 are opened to the public, the paved access road shall be closed to the public. 6.22. seventy ty neroent (70 \ of the anrea a of the total of all lots e�c�eed-e�eYea�� #��,�ag Grouted by the reGGrdatinn of the first final Map far pp�y nnni erring after the operative date of this Agreement Devel "�' vavarrm�uizcr-crr�vper'acr'v'c-cra cc�r'Zr�ru-r'c3rccn�crr�vc�c.��e�s Gau6 treEted-a-stFeet exdend+eg-north from Leh Angeles PaGifiG railFead tFaGks to a point appFoximately 6ix hundred (600) feet nn�h�nfr_qp id railrnad traGks (Improvements) Within the area of the offer of dedioa+inn required of DeyelopeF in SeGtinn 6.10 of this Agreement swety in an amn�ant and form determi need-by the Gity i sele and nd unfettered-dissretiGR te-guarantee the ImprevemeRtS shall bey-prev;dtad pFOE)r te approval of the first final map foF the PrepeFty E)GGUFFiRg after the pneFa+ive date of this Drier to issuanne of a building neFmiZ for any pertian of the Property that evneeds forty pernent (400/1 of the �vperc�crrar-c�cvccv�-rvi c-�P crvcrrr�,•o-�o7--or-rrrc aGreane of the total of all Intl nreaato�yt„rhe F nnrdatinn of the�first final map �f F the�Property GGGUrrig after the operative date of this Agre emer -�Fty m st sole and unfettered drisnretiren the final design plans and speGifiGatiens for Imnr� �S an -19- �� I1''�� �aa finanninn plan that demOonst�es the bility fURa the lrnpFeyeMeRts This finanninn plan may at Gity's solo and Unfetteped dicrrctbn Prior to the recording of the Final Map for the Project, a Community Facilities District or other funding mechanism to the satisfaction of the City Council, shall be established to provide funding for improvements to North Hills Parkway from the future eastern Property access road along the east-west section of North Hills Parkway to Gabbert Road and Gabbert Road from North Hills Parkway to a point one-hundred and twenty-five (125) feet north of the railroad right-of-way. A full or partial buyout in an amount and timing to the satisfaction of the City Council may substitute for the establishment of a district or other funding mechanism. Prior to the issuance of a building permit for any portion of the Property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), the North Hills Parkway undercrossing at the Railroad Right-of-Way immediately south of the Property shall be completed in a manner approved by the City. 7. City Agreements. 7.1. City shall use its best efforts to process plan checking and related processing for the project in an expedited manner. 7.2. City shall exempt this project from payment of the Gabbert Road/Casey Road Area of Construction (AOC) fees. 7.3. City agrees that upon receipt of a landowners' petition by developer and Developer's payment of a fee as determined necessary by City in its sole and unfettered discretion, City shall commence proceedings to form a Mello-Roos Community Facilities District ("District") and to incur bonded indebtedness to finance all or portions of the on site and off site public facilities, infrastructure and services that are required by this Agreement and Subsequent Approvals and that may be provided pursuant to the Mello-Roos Community Facilities Act of 1982 (the "Act"); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and/or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The formation, type of assessment -20- district (if City determines another type of assessment district other than District is more appropriate) and method and spread of assessment shall be at the City's sole and unfettered discretion. 7.4. If requested in writing by Developer and limited to City's legal authority, City shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer which are outside Developer's legal boundaries. The process shall generally follow Government Code Section 66457 et. seq. and shall include the obligation of Developer to enter into an agreement with City, guarantee by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, and City overhead expenses of fifteen percent (15%) on all out-of-pocket costs and City staff costs. 7.5 City shall refund Developer twelve-thousand six hundred dollars ($12,600.00) collected to process Lot Line Adjustments 2010-01 through 2010-07 by crediting this amount to the Development Deposit Fund for this project. 7.6 During project construction, City agrees to allow the on-going import, stockpiling, and use of recycled concrete and asphaltic concrete material for road base for the private streets within the property when in compliance with all Moorpark Municipal Code requirements and all other applicable City Council polices, based on the issuance of a Stockpiling Permit and up to four (4) temporary use permits, for each crushing operation of uncrushed material not to exceed thirty (30) days in length for crushing up to ten-thousand (10,000 tons) of uncrushed material and subject to the following terms: • Hauling and crushing operations shall be limited to 7:00 AM to 5:00 PM Monday through Friday, excluding City Holidays. The City Engineer/Public Works Director may impose stricter hours on hauling as needed to avoid impacts to peak-hour traffic. • The stockpiling location shall be subject to approval by the City Engineer/Public Works Director with proper surety for removal of material. • Stockpiling shall not exceed ten-thousand (10,000) tons of material at any time. • Prior to bringing any material to the stockpiling location, a report on the source and quantity shall be provided to the satisfaction of the City Engineer/Public Works Director to ensure the material is -21- suitable for recycling and consistent with the terms of the Development Agreement and Stockpiling Permit • All stockpiling under the permit shall be removed prior to the issuance of a building permit for any portion of the Property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets). • The recycled road base shall meet acceptable green book standards to the satisfaction of the City Engineer/Public Works Director. 7.7 City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map, development permit, or development agreement with one or more other developers. For road improvements, this shall include the Gabbert Road improvements from the intersection with Poindexter Avenue north to a point one-hundred and twenty-five (125) feet north of the railroad ri ht-of-wa ass ecified in Section 6.19 7.8 In the event City has not initiated construction of the North Hills Parkway undercrossinq of the railroad right-of-way in a time as required by Section 6.22 prior to issuance of a building permit for any portion of the property that exceeds seventy percent (70%) of the acreage of the total of all developable lots (excluding lots used solely as private streets), City shall allow Developer to construct undercrossinq and City shall reimburse Developer for expenses as agreed upon by City and Developer prior to construction in a manner as allowed by law. 7.9 City agrees to terminate Development Agreement No. 1998-04, adopted by the City Council on December 16, 1998 through Ordinance No. 250, and recorded by the County Recorder on December 30, 1998 with the assigned document number 98-233584. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City in its sole and unfettered discretion. -22- 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by the Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of the Developer hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, and Developer's obligations and restrictions on development as provided for in Sections 6.19, 6.20, 6.21 and 6.22 of this Agreement shall be excused during any period of "Excusable Delay", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (c) fails to make any payments required under this Agreement; or -23- 1 (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it: (a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting part y cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein, in accordance with Section 20 hereof.EveFy n^+iGe of „iolatiOR shall s+,+e with cnonifinity that it i _i�Pcn n�irjo�nn+ to thig- cen+ion of the Anreemen+ o��c vGOUO�� o� Ci-iGTT�_TGG T�fTC. the Rat Fe of +hi �eaGh, and the rna-RReF i�-R whiGh the bFeaGh M'ay-be se+isfr+ The OtiGe shall be deemed given on the date that it is personally delivered or on the third day folIOWinn the day evf+er-�i+ -,s deposited in the United States mail,+ -►�a�s�da,nne with Con+ion 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once -24- implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided pursuant to subsection 11.3 herein. The remedies for breach of the Agreement by City shall be injunctive relief and/or specific performance. The remedies for breach of the Agreement by the Developer shall be injunctive relief and/or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.3, 6.41-,or 6.5, 6.6, 6.7,-ar 6.91-sr 6.10, 6.11, 6.12, 6.19, er 6.20, or-6.21, or 6.22 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ("Financier"), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. -25- Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of QFdinanGe No. 59Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. 15.1. Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement. 16. Indemnification. The Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the Developer's performance pursuant to this Agreement. -26- Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or any provision thereof or the Project Approvals or any Subsequent Approvals or modifications thereto or any other subsequent entitlements for the project including any related environmental approval. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until a building permit is issued and all fees identified in this agreement are paid for the last developable lot in the Project, whichever comes last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein _contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be -27- binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Chapter 15.30 of the Moorpark Municipal CodeQFdiRanGe Ne. 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall -28- govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof.AttRes' fees-URdeFthis se GtOORs„°" nrn" � ORGlud° a#erneys'' fees r teir R aR" judgment PFOGe s to enfeFGe the ica9e t. i�p ��ppaFaf° everall r+n�hall survive the merger of this Agreern into aRy judgment on this Agreement 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, Developer° a Drnnerties and City of Moorpark have each executed this Development Agreement on the date first above written. CITY OF MOORPARK Janice S. Parvin Mayor OWNER/DEVELOPER A-B Properties By: Paul D. Burns General Partner -29- EXHIBIT A LEGAL DESCRIPTION To be provided. A-B PROPERTIES ORIGINAL DA WITH REVISIONS(2) EXHIBIT B COVENANT RUNNING WITH THE LAND THIS COVENANT is made this day of by and between t#c-A-B Properties (Covenantors") and the City of Moorpark ("Covenantee"). WHEREAS, Covenantor is the owner of certain real property 2-3�--consisting of approximately 34.53 acres, approximately 1,300 feet west of Gabbert Road and North of the Union Pacific Railroad Right-of-Way in the City of Moorpark, County of Ventura, more particularly described in Exhibit "A" attached hereto and made a part hereof ("the Covenantor Property"),- and WHEREAS, Covenantee is the owner of certain real property at 799 Moorpark Avenue, in the City of Moorpark, County of Ventura, more particularly described in Exhibit "B" attached hereto and made a part hereof ("the Covenantor Property"); and WHEREAS, Covenantee is willing +r, rezoned the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2) through Ordinance No. 249 on December 16, 1998, but for the concern that some of the uses that are presently, or may subsequently be, allowed by right or permit in the CRDM-2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; WHEREAS, Covenantor seeks " to� ave the,Govenante,s Prep°F*FeZG ed fFem AgFOG UIt Ural EXGl live (AF=) to I imited Ind 6trial (M 2) utacknowledges that some of the uses that are presently, or may subsequently be, allowed by right or permit in the M-2 zone are, or may be, inappropriate uses for the Covenantor Property because of its particular location; and NOW, THEREFORE, in consideration of the mutual promises of the parties to this Covenant, each to the other as Covenantor and Covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follows: B-1 1. Covenantee agrees to adopted an a Ordinance No. 249 rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2); 2. Covenantor agrees that, commencing on the effective date of the ordinance rezoning the Covenantor Property from Agricultural Exclusive (AE) to Limited Industrial (M-2). Subject to the following restrictions in addition, and superseding the M-2 regulations. A. Primary uses, except agricultural crops, shall be conducted within completely enclosed buildings and metal faced buildings shall not be allowed as principal buildings. Outside storage and operations shall not be allowed as primary uses, only accessory outside storage shall be allowed, subject to the sarnepermitting requirements (Administrative Permit) and limitations in the M-2 zone (in conjunction with an approved use and screened by an eight (8) foot high masonry wall matched to the structure as M 1 (nnnfined to the area to the rear of ttrhte principal building or the FeaF of the nrnnerty, w .6 odor ic�m�n ce e , B. The following uses shall not be allowed as a primary use: • Manufacturing - Batteries • Manufacturing - Metal industries, primary; Rolling, drawing, and extruding • Manufacturing - Rubber and plastics products including tire retreading and recapping 0 MaR MontUrinn Tiro retreading and renonninn • Manufacturing - Cement, concrete and plaster, and product fabrications • Self-storage or Mmini-storage • Recreational vehicle storage 0 Sinn Freestonrllno off.site advertising cinnc • Distribution and Ttransportation facilitiessal:VwGes Tr„rl, storage overnight 3. Covenantor and Covenantee agree that, commencing on the effective date of the imited lRd retrial (M 2) Development Agreement, all uses specified in Paragraph 2.13. hereof that are presently allowed or that at any time in the future may be allowed in the M-2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from the Covenantors Property to the Covenantee Property for the benefit of the Covenantee Property. B-2 4. Covenantors and Covenantee agree that from time to time Covenantee may substitute any other property owned by Covenantee on the date of the substitution for the Covenantee Property ("the Substitute Covenantee Property") without the consent of Covenantor by the recordation of an amendment to this Covenant. The amendment shall describe the Substitute Covenantee Property and shall provide that, commencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof that are presently allowed, or that at any time in the future may be allowed, in the M-2 (Limited Industrial) zone, whether by right or by permit, shall be deemed transferred from that Covenantor Property to the Substitute Covenantee Property for the benefit of the Substitute Covenantee Property. 5. All of the covenants, restrictions, and limitations set forth herein shall run with the Covenantee Property and the Covenantor Property and shall benefit and bind all persons, whether natural or legal, having or acquiring any right, title, or interest in any portion of the Covenantee Property or the Covenantor Property. Each grantee of a conveyance or purchaser under a contract of sale or similar instrument that covers any right, title, or interest in or to any portion of the Covenantee Property or the Covenantor Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefited by, all of the covenants, restrictions and limitations set forth herein. 6. Nothing in this Covenant shall be construed so as to limit the right of Covenantee to rezone, or the right of Covenantor to petition Covenantee to rezone, the Covenantor Property in the future. 7. This Covenant shall remain in full force and effect until such time as an ordinance rezoning the Covenantor Property from AnriG It oral EX isiye (AE) to-Limited Industrial (M-2) to another zone designation becomes effective. 8. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate a covenant, restriction or limitation hereof. The prevailing party shall be entitled to recover such attorneys' fees and court costs as it reasonably incurs in such a proceeding. 9. In the event any provision of this Covenant is found to be invalid or unenforceable in any proceeding at law or in equity, such finding shall not affect the other provisions of this Covenant, which shall remain in full force and effect. B-3 10. Either party may record in the office of the Recorder of Ventura County this Covenant or any amendment hereto specified in Paragraph 4 hereof without the consent of the other party. IN WITNESS WHEREOF, Covenantor and Covenantee have executed this Covenant on the date first above written COVENANTORS COVENANTEE A-B PROPERTIES CITY OF MOORPARK B-4 EXHIBIT C To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: A-B Properties ATTN: Paul Burns C-1