HomeMy WebLinkAboutAGENDA REPORT 2009 0401 CC REG ITEM 09A rr 9. A .
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AGENDA REPORT
TO: The Honorable City Council
FROM: Steven Kueny, City Manager We
DATE: March 25, 2009 (CC Meeting of 4/01109)
SUBJECT: Consider Memorandum of Understanding (MOU) with Pardee Homes
for Proposed Residential Development of Vacant School Site in
Moorpark Highlands Specific Plan No. 2
BACKGROUND
On September 15, 1999, the City Council approved various actions including a General
Plan Amendment, Zone Change and Development Agreement for a project generally
referred to as Moorpark Highlands Specific Plan No. 2 upon the application of Morrison
Homes. The approved project consisted of approximately 445 acres with 570
residential units (552 were subsequently approved), an approximate 7-acre park, and
22 acres reserved for a school site. The approved Moorpark Highlands project was
subsequently acquired by Pardee Homes.
In April 2004, Moorpark Unified School District (MUSD) and Pardee Homes entered into
a School Facilities Agreement which set forth the general terms for acquisition of the
school site. On September 21, 2005, Community Facilities District (CFD) 2004-1 was
established by the City and subsequently issued and sold $38,030,000.00 in Bonds to
fund certain fees and public facilities including the purchase of the school site by MUSD.
MUSD and Pardee Homes jointly authorized an appraisal of the school site, and the
resulting Appraisal Report concluded the market value of the school site to be
$15,850,000.00. (Please note that regardless of the actual market value of the school
site, Pardee Homes had the legal ability to claim about $33,000,000.00 from the CFD
Project Improvement Fund. Other legitimate costs and fees could be substituted for a
reduced cost of the school site.) In August 2007, MUSD and Pardee Homes entered
into a Purchase and Sale Agreement for the school site. At some point in 2007-2008,
MUSD indicated it was not planning to construct a school on the school site in the
foreseeable future.
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Honorable City Council
Pardee Homes MOU Agenda Report
March 25, 2009 (CC Meeting of 4/01/09)
Page 2
DISCUSSION
In October 2008, MUSD indicated in a letter to the City (attached) its desire to terminate
the Purchase and Sale Agreement. Pardee Homes disputes MUSD's ability to
terminate the Purchase and Sale Agreement.
Pardee Homes and a City Council Ad Hoc Committee (Mayor Pro Tern Van Dam and
Councilmember Millhouse) have met several times on the school site issue. The
attached Memorandum of Understanding (MOU) is the result of those meetings. The
MOU sets forth the parameters under which Pardee Homes will submit and the City will
process and consider a residential development for the school site. The proposed
development would be generally consistent with the current Specific Plan No. 2 and
Development Agreement but requires amendments to the General Plan, Specific Plan,
Zoning and Development Agreement to effectuate the proposed development. The
maximum 225 residential units would exceed the current 712 maximum number of units
by 65 units (552 currently approved, plus 225 proposed, less 712).
The MOU provisions are summarized as follows:
• A maximum of 225 additional units with at least 70 detached units.
• Five percent (5%) of approved additional units (with a minimum of 12) shall be
provided to qualified low income buyers in a similar manner as provided for in the
current Development Agreement and Affordable Housing Agreement. All such
units would be provided for from the attached units.
• All of the additional units, except those required to be sold to qualified low
income buyers, would be included in CFD 2004-1.
• Pardee Homes shall pay all applicable development fees and expand/improve
the Mammoth Highlands Park by about .44 acres to allow connection to Ridgecrest
Street and facilitate connection to Happy Camp Canyon Park and trails.
• Processing of the necessary amendments and related Residential Development
Permit and Tentative Tract Map is expected to take six to nine (6-9) months.
During this time, any legal action by Pardee Homes concerning the school site is
suspended. Pardee Homes shall also continue to maintain the school site.
• Pardee Homes shall receive a total maximum $27,000,000.00 reimbursement
from CFD 2004-1. To date Pardee Homes has received $16,943,673.41 from the
Project Improvement Fund leaving a balance they can draw from of
$10,056,362.59. Pardee Homes shall be entitled to receive an additional
$4,000,000.00 from the Project Improvement Fund upon execution of the MOU.
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Honorable City Council
Pardee Homes MOU Agenda Report
March 25, 2009 (CC Meeting of 4/01/09)
Page 3
When other costs related to the Bonds are factored in, there could be early
redemption (and savings to the property owners) of about $8,000,000.00. Please
note there are administrative and legal costs as well as a three percent (3%)
penalty associated with such early redemption.
• At the present time, 527 units (the 25 affordable units are exempt) are paying for
$38,030,000.00 CFD 2004-1 Bonds. With the proposal as contained in the MOU,
another 213 units (the 12 affordable units would be exempt) would be included in
CFD 2004-1 with an estimated $8,000,000.00 reduction in the amount of the
Bonds. This would result in about 43% overall average reduction in the CFD
special taxes for the current 527 units. A summary of the Potential Bond
Reduction is attached.
• If the project proceeds to approval, the changes to CFD 2004-1 could become
effective prior to the end of the 5-year period in which Pardee Homes agreed to
pay the CFD special taxes. In addition, it is intended that any buyers who
prepaid the CFD special taxes would receive benefit of such reduction.
In summary, if the proposed MOU is approved and a residential project is approved for
the school site, the following benefits would be realized:
1) The City and MUSD can avoid a costly legal battle with Pardee Homes;
2) It would add a project complementary to the existing built and planned residential
communities of Moorpark Highlands;
3) It would spread future LIVID assessments among 181 additional units (school site
is currently assessed at 44 single-family equivalent units) for an approximate 20
percent (20%) decrease;
4) Decrease the CFD special taxes by about 43%; and
5) Provide for residential development of the school site much sooner (as early as 2011
depending on market conditions)than a school would be expected to be built.
STAFF RECOMMENDATION
Approve the Memorandum of Understanding (MOU) subject to final language approval
of the City Manager and City Attorney and authorize Mayor to sign.
Attachments:
1) Proposed MOU
2) October 9, 2008, MUSD Letter
3) Summary of Potential Bond Reduction
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ATTACHMENT 1
MEMORANDUM OF UNDERSTANDING
This Memorandum of Understanding ("MOU") is entered into effective
2009 ("Effective Date'), by and among the City of Moorpark, a
municipal corporation ("City"), and Pardee Homes, a California corporation
("Developer"). This MOU is made and entered into with respect to the following recitals,
and in consideration of the terms, covenants and conditions set forth below:
1.0 RECITALS
1.1. As described below, Developer is the owner of certain real property shown
on Exhibit "A" to this MOU and hereinafter referred to as the "Property" or the "School
Site'.
1.2. On September 15, 1999, the Moorpark City Council certified the Moorpark
Highlands Specific Plan No. 2 Final Environmental Impact Report ("the "EIR"), approved
a Mitigation Monitoring Program, approved General Plan Amendment No. 95-2 ("GPA
95-2"), approved Moorpark Highlands Specific Plan No. 2 ("SP 95-2"), and approved
Zone Change No. 95-4 ("ZC 95-4") for approximately 445 acres within the City (the "SP
95-2 Property"), and adopted Ordinance No. 263 approving a Development Agreement
for the SP 95-2 Property (the "DA").
1.3. The Property is included within the SP 95-2 Property and is designated in
SP 95-2 as a school site. As of this date, the Property has not been purchased or
otherwise transferred to Moorpark Unified School District ("MUSD").
1.4. MUSD and Developer entered into a School Facilities Agreement dated
April 27, 2004 ("School Facilities Agreement'), which includes general terms for
acquisition of the School Site by MUSD. MUSD and Developer subsequently entered
into a Purchase and Sale Agreement with respect to the School Site dated August 21,
2007 (the "Purchase Agreement').
1.5. Consistent with the definitions of the School Facilities Agreement, MUSD
and Developer jointly authorized an appraisal of the School Site and subsequently
received an Appraisal Report which concluded the market value of the School Site to be
$15,850,000.00.
1.6. On September 21, 2005, CFD 2004-1 was established by the Moorpark
City Council pursuant to applicable provisions of state law. In conjunction with the
formation of CFD 2004-1, the City, MUSD and Developer entered into a Joint
Community Facilities Agreement dated September 13, 2005 (the "JCFA") authorizing
the financing of the acquisition of the School Site and School Fees relating to the SP
95-2 Property ("School Facilities') through CFD 2004-1 and the City and Developer
entered into a Funding and Acquisition Agreement dated September 7, 2005 (the
"Funding Agreement") providing for the financing of certain City fees ("City Fees') and
City facilities ("City Facilities"), in addition to the School Facilities, through CFD 2004-1.
Subsequently, in 2006, CFD 2004-1 issued and sold $38,030,000.00 in bonds (the
'Bonds') to fund the City Fees, City Facilities and School Facilities, including purchase
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of the School Site by MUSD. Pursuant to a Fiscal Agent Agreement by and between
the City and The Bank of New York Trust Company, N.A., (the "Fiscal Agent") dated as
of July 1, 2006 (the "Fiscal Agent Agreement") a portion of the proceeds of the Bonds
were deposited in an "Improvement Fund" established and maintained by the Fiscal
Agent. As of December 31, 2008, $16,943,073.41 has been disbursed to Developer
from the Improvement Fund pursuant to the Funding Agreement and Fiscal Agent
Agreement.
1.7. In October 2008, MUSD indicated in a letter to the City its desire to
terminate the Purchase and Sale Agreement with the Developer. Developer disputes
MUSD's ability to terminate the Purchase Agreement.
1.8. This MOU is intended to outline the parties' agreements and mutual
understandings with respect to the processing of Developer's development plans for the
Property through the City and with respect to certain items relating to CFD 2004-1. This
MOU shall also serve as the City's general plan pre-screening process.
NOW, THEREFORE, the parties agree to the following terms, covenants and
conditions:
2.0 PARTIES TO THE MOU
2.1. City. The City of Moorpark is a general law city, duly incorporated under
the laws of the State of California.
2.2. Developer. Pardee Homes is a corporation duly organized and existing
under the laws of the State of California and is authorized to conduct business in the
State of California. The signatories to this MOU represent that the signatories are
authorized to execute this MOU on behalf of Developer.
2.3. No Third Party Beneficiaries. There are no other parties to this MOU,
express or implied, direct or indirect. The City and Developer acknowledge that it is not
their intent to create any third party beneficiaries to this MOU.
2.4. Assignment. This MOU shall not be assignable in whole or in part by
Developer unless the assignee executes an assignment and assumption agreement, in
a form reasonably acceptable to the City, assuming all of Developer's rights and
obligations hereunder. The City may terminate this MOU for any assignment in violation
of this paragraph and Developer shall not be relieved of any of its obligations hereunder
for any such assignment.
3.0 THE PROPERTY
3.1. Developer is the owner of certain real property located in the County of
Ventura, California, which is referred to as the SP-2 Property. The Property consists of
approximately 22 acres (and is a portion of the "SP-2 Property'). One of the purposes
of this MOU is to outline the process for developing the Property.
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4.0 DEVELOPER AND CITY OBLIGATIONS
4.1. Deposit. No later than close of business on the business day following
execution of this MOU by both parties (which execution shall occur no later than close
of business on May 4, 2009), Developer shall deposit the amount of $50,000.00
("Deposit") into the Project Trust Account to be established by the City. Pursuant to this
MOU, the City may disburse funds from the Project Trust Account to defray costs
incurred by the City in the course of administering and processing the "Project
Entitlements' (defined in Section 5.1 below) and environmental documents, consistent
with the tasks identified in the "Project Schedule" (defined in Section 4.5 below).
Developer shall maintain and continue to replenish said Deposit with the City during the
term of this MOU in the manner specified in Section 4.2, below. Upon termination of
this MOU, if any portion of the Deposit remains, the City shall return the Deposit
balance to Developer without interest thereon. Developer agrees that the City may use
the Deposit to pay the City any amounts due the City pursuant to the terms of this MOU.
4.2. City Costs. Developer shall pay City for one hundred percent (100%) of
any City costs related to administering, preparing, reviewing and processing the
environmental documents and the Project Entitlements described in this MOU. City will
send Developer a cost estimate and invoice for the additional costs anticipated for the
next sixty (60) days, when eighty percent (80%) of the total Deposit, referenced in
Section 4.1, above, has been expended. Developer shall then make a supplemental
Deposit, based on the City's sixty (60) day cost estimate, within thirty (30) days of
receipt of invoice. In no case shall the amount on deposit with the City to pay for City
costs be less than $20,000.00 to allow for payment of City costs in the event of
termination of this MOU by Developer.
Consistent with the City's adopted Schedule of Land Development
Preliminary Processing Fee Deposits, Developer shall pay cost plus fifteen percent
(15%) for contract consultants, City Attorney and City Engineer staff work.
The City may redact the City Attorney's invoices in order to protect the
disclosure of information protected by the attorney-client and/or attorney work product
privileges.
4.3. Application Fees. Payment of City costs, as described in Section 4.2,
above, satisfies the Developer's requirement to pay, and will incorporate and satisfy
deposits for, the City's application fees associated with the processing of the
environmental documents and Project Entitlements described in this MOU. Developer
acknowledges that it is not exempt from any City processing costs.
4.4. Suspend Processing. The City shall have the right to suspend
processing of the Project Entitlements and environmental documents in the event that
Developer fails to maintain the Deposit as specified in this MOU.
4.5. Project Schedule. City agrees to process the Project Entitlements (and
environmental documents) pursuant to the "Project Schedule," attached as Exhibit "B".
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Both Developer and City acknowledge that time is of the essence in connection with the
attached Project Schedule. Therefore, the Developer and City will diligently process the
Project Entitlements and associated environmental documents, so that the
processing/environmental review is completed in accordance with the attached Project
Schedule. Developer may decide to stop or otherwise withdraw processing the Project
Entitlements and environmental documents if Developer determines that the Project
Schedule is not being met, that the proposed mitigation measures and conditions of
approval associated with the Project Entitlements would render the proposed project
economically infeasible, or that the proposed Development Agreement amendment
would render the proposed project economically infeasible. If City is notified to stop
processing the Project Entitlements and environmental documents, this MOU shall be
terminated and the application for the Project Entitlements shall be considered
withdrawn, subject to payment of"close-down" costs identified in Section 4.6, below.
The City agrees to take final action with respect to certification of the
environmental documents and approval of the Project Entitlements in accordance with
the Project Schedule, with the exception that for every one day that Developer is late in
submitting payment of the Deposit to the City, or a check payment is not honored by the
bank due to insufficient funds, the time period may be extended by two days. A
payment will be considered late if a check for the full amount of an invoice is not
submitted to the City within 30 calendar days following Developer's receipt of invoice,
pursuant to payment and notification terms specified in this MOU. Receipt of invoice by
mail initiates the 30-day time period for payment of each invoice. This "late payment"
provision does not apply to the amount of any invoices contested or questioned by
Developer, but not resolved by City staff or City Council, consistent with Section 4.2,
above.
4.6. Developer Processing. Developer will respond promptly to any inquiries
from City staff or its consultants concerning draft planning documents or tasks to be
performed. Should this MOU be terminated as provided herein, Developer will remain
liable for payment of sums previously committed or "close-down" costs, which cannot be
reasonably avoided. Payment of such costs not covered by the Project Trust Account
will be due and payable within 30 days of the date of written notice of termination.
Developer's termination of this MOU shall be deemed a withdrawal of all applications for
Project Entitlements.
4.7. State Agency or Federal Studies, Permits or Approvals. City and
Developer agree to mutually cooperate in the preparation and processing, at the sole
cost of the Developer, County of Ventura, state agency or federal studies, permits or
approvals necessary to facilitate the timely implementation of the Project Entitlements.
4.8. Conflict of Interest. The Developer agrees not to hire or retain, for a
period of one year after City Council final action on the Project Entitlements, any current
City employee as of February 1, 2009, consultant retained by the City that worked on
the Project Entitlements, or any employee of such consultant.
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4.9. Amended Development Agreement. The parties agree that Developer
may submit an application to amend the DA to include, but not be limited to, the
following:
A. That any residential units approved for the Property shall pay the
then applicable fees contained in Sections 6.4, 6.5, 6.6, 6.14, and 6.21 as well as the
then applicable fee for the Los Angeles Avenue Area of Contribution (LA AOC);
B. That five percent (5%) of the number of residential units approved
on the Property with a minimum of 12 (fractions shall be rounded up to the next highest
whole number) shall be provided to qualified low income buyers. The residential units
to be provided to qualified low income buyers shall be provided within the attached
residential units proposed for the Property. In addition, up to three (3) of the qualified
low income units may be provided in the residential project known as Waverly Place in
SP-2 (RPD 2004-01 and Tract Map 5045). Implementation of this provision shall be
consistent with the DA and existing Affordable Housing Agreement for SP-2;
C. Effective October 1, 2011, the $150,000.00 payment contained in
Section 5.30 and $350,000.00 payment contained in Section 6.9 of the DA shall be
increased in the same manner as the CPI Increase provided for in Section 6.6 of the
DA; and
D. The Quimby requirement for all units above 570 in SP-2 shall be
subject to credit for the land and improvement costs of the expansion of the park site
described in Section 4.11.0 below.
4.10. Community Facilities District 2004-1.
A. Developer agrees that if the Project Entitlements for a residential
project consisting of no less than 225 units (of which a minimum of seventy (70) shall be
single family detached units) are finally approved by City for the Property, (i) Pardee
shall terminate the Purchase and Sale Agreement, (ii) Pardee shall limit its total
reimbursement from the proceeds of Bonds of CFD 2004-01 to $27,000,000.00, (iii) any
funds in the Improvement Fund in excess of the amount required to fund such total
reimbursement, less any CFD 2004-1 consultant costs associated with the redemption
of Bonds and adding residential units approved in the Project Entitlements to CFD
2004-01, shall be applied to redeem a portion of the Bonds, consistent with applicable
provisions of State and Federal laws and regulations. As a result of such redemption,
the Special Taxes for Facilities shall be decreased in accordance with the Rate and
Method (defined below). For purposes of this MOU, the Project Entitlements shall be
deemed to be "finally approved" when all related resolutions and ordinances have been
adopted by the City Council and all applicable periods for a legal challenge of, or
referendum on, the Project Entitlements have passed without the filing of a legal
challenge or referendum petition. Developer may terminate this MOU, if a legal
challenge of, or referendum on the Project Entitlements, is filed.
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B. To the extent permitted by applicable law, City agrees to initiate
action and Developer agrees to cooperate in such action to include any residential units
(except those designated to be sold to low income buyers pursuant to Section 4.9.13. of
this Agreement) approved for development on the Property in CFD 2004-01 for
purposes of levying the Special Tax for Facilities and the Special Tax for Services
described in the Rate and Method of Apportionment attached as Exhibit "B" to City
Council Resolution No. 2004-2383 (the "Rate and Method"). If such residential units are
made subject to such special taxes, City agrees that funds in the Improvement Fund
may be disbursed to fund City Fees applicable to such residential units in accordance
with the Funding Agreement, upon Developer's submittal of a Payment Request, and
Developer may receive a total reimbursement from the Improvement Fund in an amount
of $27,000,000.00 consistent with 4.10.A.(ii), above.
C. City agrees to continue to process and pay from the Project
Improvement Fund all Payment Requests submitted by Developer pursuant to, and in
accordance with, the Funding Agreement prior to and following execution of this MOU in
an additional amount not to exceed $4,000,000.00; provided, however, prior to the
earlier of termination of this MOU or the date the Project Entitlements are finally
approved, City and CFD 2004-1 shall not be required to pay Payment Requests
submitted for acquisition of the School Site.
D. City agrees to amend the Fiscal Agent Agreement, within thirty (30)
days following the effective date of an amended DA executed by both parties, to provide
for the deposit in the Special Tax Fund of all earnings on the investment of funds in the
Improvement Fund and all earnings in the investment of funds in the Reserve Fund in
excess of the Reserve Requirement after the effective date of the amended DA to be
used to pay debt service on the Bonds.
4.11 Miscellaneous.
A. During the term of this MOU, Developer shall pay and keep current
all taxes and assessments on all its properties within the SP 95-2 Property.
B. Consistent with Project Schedule, Developer shall submit a
completed application for residential projects on the Property consisting of no less than
160 and no more than 225 attached and detached residential units. The attached
residential units shall be generally consistent with the residential project known as
Waverly Place in SP-2 (RPD 2004-01 and Tract Map 5045).
C. Developer acknowledges that any approved residential project on
the Property shall be conditioned to include an expansion of the park site in SP-2 of
approximately 0.44 acres (approximately 40 feet wide by 475 feet long exclusive of any
slope easements) to serve primarily as an access trail from the park site to a point near
the terminus of Ridgecrest Drive and the SR-23 Alternate at the City boundary with
Happy Camp Canyon Regional Park (the 'Park Site Expansion"). Developer further
acknowledges it shall be conditioned to construct landscaping, concrete walkway,
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grading and bollard-type lighting in the Park Site Expansion consistent with City
approved plans and specifications.
D. Developer agrees to suspend any legal action against City
pertaining to the School Site and CFD 2004-1 during the term of this MOU. City agrees
that the limitations period for bringing any such legal action against City shall be tolled
during the term of this MOU. Developer also agrees to suspend any legal action
against MUSD pertaining to the School Site and during the term of this MOU, provided
Developer and MUSD enter into an agreement tolling all applicable limitations period for
such actions for the same term.
E. Developer further agrees that no additional public improvements
including but not limited to fees and as described in CFD 2004-01 shall be eligible for
reimbursement from CFD 2004-01 resulting from residential development of the
Property.
F. City agrees that any additional public improvements off-site of SP-
95-2 conditioned as part of the Project Entitlements shall be funded by the LA AOC or
other funds as determined by City at its sole discretion.
5.0 PROJECT ENTITLEMENTS
5.1. Entitlements. The project applications for entitlements, permits and
approvals shall be processed concurrently, shall be referred to collectively as "Project
Entitlements" and shall include the following:
A. Amendments to the General Plan Land Use Element, SP-2 Specific
Plan and related Zoning, and the DA.
B. Residential Planned Development Permit and Tentative Tract Map.
5.2. Environmental Processing/Review. The Project Entitlements described
in this MOU will require further environmental documentation pursuant to the
requirements of CEQA (Pub.Res.Code §§21000 et seq.) and the state CEQA
Guidelines (14 Cal.Code Regs §§15000 et seq.). The City will: (a) undertake the
preparation, consideration and possible certification of all required environmental
documents in the manner required by law; (b) follow all legally prescribed proceedings
for the processing of the Project Entitlements, including public notices and hearings;
and (c) exercise its independent judgment relative to all Project Entitlements and
environmental documents.
5.3. No Obligation to Certify/Approve. City agrees to take final action with
respect to certification of the environmental documents and approval of the Project
Entitlements in accordance with the Project Schedule. Developer understands and
agrees that in no event or circumstance shall this MOU be deemed to require City
approval/certification of the environmental document or approval of the Project
Entitlements described in this MOU. City retains the full discretion authorized by law in
reviewing and considering any and all entitlements sought by Developer for the
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Property. Any denial or rejection of any entitlement by the City for the development of
the Property shall not constitute a default of the MOU. Further, Developer shall also
seek a refund of monies paid to the City for project processing if the environmental
document is not approved/certified, or if the Project Entitlements are not approved by
the required decision maker, whether Community Development Director, Planning
Commission, and/or City Council.
5.4. Planning Consultant. Subject to Developer's payment obligations
described above, both Developer and the City agree that a planning consultant, subject
to advance consultation with Developer, may be retained to provide planning and
processing services for the Project Entitlements. The City will execute a professional
services agreement with the designated planning consultant for the planning and
processing services required for the Project Entitlements described in this MOU.
5.5. Developer Participation. City agrees to allow Developer, through its
representatives and consultants, to participate in meetings and discussions with City
staff and retained consultants regarding the preparation of the Project Entitlement
documents, and the environmental documentation associated with the Project
Entitlements, including preparation of draft documents for City staff review and
consideration, and the review and revision of draft environmental documents prepared
by the City's consultants. The City retains its full discretion to independently meet with
the City's consultants, and to independently review all project and environmental
documentation.
Developer shall receive from the City copies of all completed
environmental documents prepared by the environmental consultant for the Project
Entitlements described in this MOU. City staff and Developer will work cooperatively
regarding the preparation of draft and final environmental documents and Project
Entitlements, including the opportunity of Developer to review and comment on draft
reports prior to distribution. The City retains its full discretion on the final drafts of all
documents released to the public.
5.6. Senior Management. If requested by Developer, City agrees to schedule
and participate in a meeting or conference call between Developer and Deputy City
Manager at least once every two (2) weeks to review project progress and Project
Schedule, and to resolve outstanding issues, if any.
6.0 TERM OF AGREEMENT
6.1. Effective Date. This MOU shall become operative on the Effective Date
identified above and, unless earlier terminated pursuant to the terms of this MOU, shall
continue in effect until action on the Project Entitlements and environmental documents
are finally approved and all actions required by Section 4.10.A. have been taken, except
that the indemnification provision of Sections 7.7 and 7.12 shall survive termination or
expiration of this MOU for any claims or causes of action arising during the term of this
MOU. The term of this MOU may be extended by the further written agreement of the
parties.
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7.0 OTHER PROVISIONS
7.1. Integrated Agreement. This MOU constitutes the final agreement
between the parties and supersedes all prior oral or written negotiations, discussions,
communications, promises, covenants, understandings or representations between the
City, and Developer, and Developer's predecessors in interest, regarding the subject of
this MOU other than the DA, Funding Agreement, JCFA and any other written
agreements between the parties related to the SP 95-2 Property. Notwithstanding the
foregoing, the parties acknowledge that the provisions of any other valid mutual written
agreements shall remain in full force and effect.
7.2. Constructionlinterpretation. The parties to this MOU acknowledge that
they have been represented by counsel in respect of the negotiation and drafting of this
MOU, and that no terms, covenant or condition of this MOU shall be construed or
interpreted by reference to the extent to which either party participated in the drafting of
the MOU, or any part thereof.
7.3. No Waiver of Any Default. The parties to this MOU do not waive any
default by a party to the MOU by virtue of failing to take prompt action with respect to
such default.
7.4. Attorneys' Fees. In any action or proceeding arising under this MOU, or
to enforce the provisions of this MOU, each party shall bear its own attorneys' fees and
costs.
7.5. Interpretation and Governing Law. This MOU and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California.
7.6. Force Majeure. Developer agrees that the City shall not be deemed to be
in default where failure or delay in performance of any of the City's obligations under
this MOU to process the Project Entitlements is caused by floods, earthquakes, other
Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties
beyond the City's control, government regulations (including those federal and state
agencies with environmental permitting authority), or court actions (such as restraining
orders or injunctions). If any such events shall occur, the terms of this MOU and the
time for performance by the City of its obligations hereunder shall be extended by the
period of time that such events prevented such performance provided that the term of
this MOU shall not be extended under any circumstances for more than three (3)
months.
7.7. Hold Harmless. Developer shall hold harmless, indemnify and defend the
City and its officers, employees, servants, agents and independent contractors who
serve in the role of City Manager, Assistant City Manager, Assistant to City
Manager/City Clerk, Director of Community Development, City Engineer or City Attorney
("Indemnitees") from any claim, demand, damage, liability, loss, cost or expense, for
any damage whatsoever, including but not limited to death or injury to any person and
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injury to any property, resulting from misconduct, negligent acts, errors or omissions of
Developer or any of its officers, employees or agents in the performance of this
Agreement asserted by a third party ("Third Party Litigation"), except such damage as is
caused by the sole negligence of the City. Developer also agrees to hold harmless,
indemnify and defend Indemnitees from any Third Party Litigation (as contemplated in
Section 7.12), including, but not limited to, litigation challenging this MOU, any of the
Project Entitlements, environmental document approval/certification for the Project
Entitlements and the processing and approvals thereof.
7.8. Notices. Any notice called for in this MOU shall be by hand-delivery,
overnight courier service, or registered or certified mail as follows:
To City and CFD 2004-1: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: Steven Kueny, City Manager
With a Copy to: Burke, Williams & Sorensen
444 South Flower Street, Suite 2400
Los Angeles, CA 90071
Attn: Joseph M. Montes, Esq.
To Developer: Pardee Homes
10880 Wilshire Boulevard, Suite 1900
Los Angeles, CA 90024
Attn: General Counsel
With a copy W Hewitt & O'Neil LLP
19900 MacArthur Blvd., Suite 1050
Irvine, CA 92612
Attn: John Yeager, Esq.
Any such notices sent by registered or certified mail, return receipt requested, shall be
deemed to have been duly given and received seventy-two (72) hours after the same is
so addressed and mailed with postage pre-paid. Notices delivered by overnight service
shall be deemed to have been given twenty-four (24) hours after delivery of the same,
charges pre-paid to the U.S. Postal Service or private courier. Any notice or other
document sent by any other manner shall be effective only upon actual receipt thereof.
7.9. Further Actions and Instruments. Each party shall cooperate with and
provide reasonable assistance to the others to the extent contemplated hereunder in the
performance of all obligations under this MOU and the satisfaction of the conditions of
this MOU. Upon the request of any party at any time, the other parties shall promptly
10 o00013
execute, with acknowledgement or affidavit if reasonably required, and file or record
such required instruments and writings and take any actions as may be reasonably
necessary under the terms of this MOU to carry out the intent and to fulfill the provisions
of this MOU or to evidence or consummate the transactions contemplated by this MOU.
7.10. Amendments in Writing/Cooperation. This MOU may be amended or
modified, but only in writing, duly executed by all parties to this MOU. The parties shall
cooperate in good faith with respect to any amendment or modification proposed in
order to clarify the intent and application of this MOU, and shall treat any such proposal
on its own merits, and not as a basis for the introduction of unrelated matters.
7.11. Time of Essence. Time is of the essence in the performance of the
provisions of this MOU.
7.12. Third Party Litigation. In the event of the occurrence of Third Party
Litigation, the term of this MOU shall be extended for the period of the pendency of the
Third Party Litigation or until such time as either the City or Developer (irrespective of
who is named in the Third Party Litigation) decide it is no longer in its best interest to
defend against the Third Party Litigation at which time written notice shall be provided
terminating this MOU.
7.13. Venue. This MOU is made, entered into, and executed in Ventura County,
California, and any action filed in any court or for arbitration for the interpretation,
enforcement or other action of the terms, conditions or covenants referred to herein
shall be filed in the applicable court in Ventura County, California, and Developer
agrees to not seek transfer of venue.
7.14. Exclusive Remedy. The parties hereto understand and agree that other
than actions to recover fees owed pursuant to Sections 4.1, 4.2, 7.7, and/or 7.12 of this
MOU, that the exclusive remedy for breach of the MOU by any party shall be
termination of this MOU by the non-breaching party.
7.15. MOU Executed in Counterparts. So that each of the parties may have
an executed original of this MOU, this MOU may be executed in counterparts, all of
which shall constitute a single MOU.
7.16. Exhibits. All exhibits attached to this MOU and referred to herein are
incorporated by this reference and made a part of this MOU. The exhibits identified
above are as follows:
Exhibit A The Property
Exhibit B Project Schedule
7.17 Recordation. This MOU may be recorded with the Ventura County
Recorder's Office by the City.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties to this MOU have executed the MOU on
the day and year first set forth above.
CITY OF MOORPARK:
Janice S. Parvin, Mayor
ATTEST:
Deborah S. Traffenstedt, City Clerk
City of Moorpark
Community Facilities District
No. 2004-1 (Moorpark Highlands):
By:
Janice S. Parvin, Mayor
DEVELOPER:
PARDEE HOMES, a California
corporation
By:
Name:
Title:
By:
Name:
Title:
12
1 ;00015
EXHIBIT A
[PROPERTY DESCRIPTION]
A-1 o00016
EXHIBIT B
PROJECT SCHEDULE
Pardee Homes
GPA, SPA, TTM Project Estimated Time Line to Approval
(No EIR, Mitigated Neg. Dec.)
Approval of Pardee Processing Agreement April 1 2009
Submittal of Applications and Plans May 4"
Review of Applications and Plans for Completeness May 4- 22
Letter of Incompleteness May 22
Revision to Plans by Applicant Mary 25 — June 12
Submittal of Revised Plans June 12
Review and Acceptance of Revised Plans June 15 — 26
SUMMER RECESS JULY/AUGUST
Preparation of Draft Development Agreement June 29 — July 10
Review of Draft Development Agreement by City Manager July 13 — 24
Negotiation of Draft Development Agreement by
Ad Hoc Committee and Recommendation to Council August 5 and 19
Preparation of Council Report on Draft Development
Agreement August 20 —August 21
City Council Hearing on Ad Hoc Committee
Recommendation September 2
Preparation of Planning Commission Agenda Report September 3 - 18
Advertisement of Public Hearing for Planning Commission September 11
Planning Commission Public Hearing on Applications September 22
Preparation of City Council Agenda Report September 26 - October 9
Advertisement of Public Hearing for City Council October 9
City Council Public Hearing on Applications October 21
Second Reading of DA Ordinance November 4
Developer may submit applications and plans as much as thirty (30) days
after this date without extending the date for the second reading of the DA Ordinance
S'.\City Manager\Everyone\Agreements\Pardee MOU 2009 0323-to HCC for approval 2009 0401.doc
B-1 )00017
ATTACHMENT 2
Learning Today to Lead Tomorrow
MOORPARK UNIFIED SCHOOL DISTRICT
5297 Maureen Lane, Moorpark, California 93021 (805) 378-6300
October 9, 2008
HAND DELIVERED
Members of the City Council
Steve Kueny, City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, Ca. 93021
RE: School Site in the Highlands Development
City of Moorpark Cooperation in Locating a Future School Site
Suspend Request for Release of School Funds in the CFD
Dear Members of the City Council and City Manager Kueny;
The Board of Education has spent considerable time in recent months studying factors related to student
enrollment projections and potential needs in the community for a future school. Based upon this analysis
and after considering all options, the District recently initiated negotiations with Pardee through legal
counsel to determine the company's willingness to enter into an agreement to terminate the purchase
agreement.
Until the issue is resolved, the District hereby suspends its December 7, 2007 request for disbursement of
the purchase funds from the CFD.
During recent Ad Hoc Committee meetings, Council members voiced their personal commitment to assist
the District locate and secure a future school site during the planning of future development in the
community. According to the City's population projections, of a peak of 45,000 inhabitants possibly
between the years 2020 - 2025, a proportionate student generation factor will yield somewhere around
8900 - 9000 students which will completely fill or exceed classroom capacity throughout the school district.
At such time, the community will feel the need for another school in order to maintain optimum school
sizes and to address peak grade level enrollments. Therefore, the Board is asking the City to formalize the
commitment for a future school site through a Memorandum of Understanding or other appropriate
mechanism to revise the General Plan of the community to include a school site in the northern part of the
City.
We look forward to working with you to ensure that school facilities planning and city planning are in sync
in order to provide the community with the best possible services for the residents and their children.
SincTrely
, \
Ellen Smith
District Superintendent
cc: Board of Education
Jim Bizzelle X10001$
John P. Yeager
BOARD OF EDUCATION; David Pollock,President Bruce Thomas,Vice President Greg Barker,Clerk
Mindy Yaras,Member Ron LaGuardia,Member Ellen Smith,District Superintendent
An Equal Opportunity Employer
ATTACHMENT 3
Summary of Potential Bond Reduction
$ 38,030,000.00 Principal Amount of Bonds Issued
$ (1,220,000.00) Estimated Cost of Issuance
$ 36,810,000.00 Net
$ (2,472,615.00) Deposit to Bond Reserve Fund
$ (270,547.00) Deposit to Bond Capital Interest Account
$ 34,066,838.00 Net to Project Improvement Fund
$ (1,000,000.00) Flood Control Improvements
$ (16,943,673.00) Paid to Pardee from Project Improvement Fund
$ 1,925,844.00 Interest Earned on Project Improvement Fund
$ 18,049,009.00 Estimated Current Balance in Project Improvement Fund
$ (10,056,327.00) Balance to be Paid to Pardee from Project Improvement Fund
$ 7,992,682.00 Estimated Balance (1)
(1) Additional interest earnings are expected to offset some
of the administrative and legal costs and 3% early redemption
penalty.
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