HomeMy WebLinkAboutAGENDA REPORT 2017 0607 CCSA REG ITEM 09E ITEM 9.E.
CITY OF MOORPARK,CALIFORNIA.
City Council Meeting
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BY: i
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: The Honorable City Council
FROM: Steven Kueny, City Manager
DATE: June 2, 2017 (CC Meeting of 6/7/2017)
SUBJECT: Consider Pre-Litigation Settlement Agreement between the
City of Moorpark and CEMEX Construction Materials Pacific,
LLC Regarding CEMEX's Payment of Costs for City Public
Improvements in Connection with Modification Application to
County of Ventura Conditional Use Permit No. 4633.
DISCUSSION
For the past several months Mayor Parvin and City staff have been discussing a
potential agreement with Cemex to address the traffic impacts on certain
intersections in the City analyzed as part of the environmental document for a
Modification Application for the County of Ventura Conditional Use Permit (CUP)
No. 4663. A proposed agreement has been reached and is presented to the
City. The agreement provides contribution of up to $1,500,000 by Cemex for
realignment and widening of two intersections on Moorpark Avenue (SR23). The
intersections are 1) First Street / Poindexter; and 2) High Street. The agreement
provides for a construction period of up to 20 years in which the Cemex funds
would be available for the project. The extended period recognizes the extensive
work that would be required to improve the two intersections including
coordination with Caltrans, Southern California Regional Rail Authority (SCRRA)
and Union Pacific Railroad, environmental review, property acquisition, obtain
and commit funding and design engineering.
As part of the proposed agreement the City would agree to not oppose the
Cemex project. As of June 2, 2017 the City Attorney and Cemex's Attorney were
still discussing the agreement. A copy of the current form of the draft agreement
is attached.
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Honorable City Council
June 7, 2017
Page 2
FISCAL IMPACT
This agreement would provide a significant contribution of up to $1,500,000 for a
project with an initial rough cost estimate of $15,000,000. Historically, even
though Moorpark Avenue is a State Highway the City not Caltrans has secured
funding for the improvements on State Highways within the City. The City will
seek Caltrans and SCRRA funding participation for these intersection
improvements.
STAFF RECOMMENDATION
Approve the Pre-Litigation Settlement Agreement and authorize the Mayor to
sign the Agreement, subject to final language approval by the City Manager and
City Attorney.
Attachment: Draft Agreement
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PRE-LITIGATION SETTLEMENT AGREEMENT
BETWEEN CITY OF MOORPARK AND CEMEX
CONSTRUCTION MATERIALS PACIFIC, LLC
REGARDING CEMEX'S PAYMENT OF COSTS FOR CITY
PUBLIC IMPROVEMENTS IN CONNECTION WITH
MODIFICATION APPLICATION TO CONDITIONAL USE
PERMIT NO.4633
This Agreement ("Agreement") is made and entered into as of day of March, 2017,by and
between CEMEX Construction Materials Pacific, LLC, a Delaware limited liability company
("CEMEX") and the City of Moorpark, a California municipal corporation("City"). The parties
to this Agreement are hereinafter referred to individually as a "Party" and collectively as the
"Parties."
RECITALS
A. CEMEX owns and operates a commercial construction aggregate mining and
processing facility and other related businesses ("Mine") on certain real property in
unincorporated Ventura County("County")near the City of Moorpark, California, with a
business address of 9035 Roseland Avenue, Moorpark, California 93021, denoted by the
following County Assessor's Parcel Numbers ("APN") 500-0100-060, 500-0-100-220, 500-0-
100-230, 500-1-100250 and 500-0-100-260 (collectively, the "Site"). The Site is located
approximately 4 miles north of the City and 1.2 miles north of State Route 23, as generally
depicted in Exhibit A, attached hereto and incorporated herein by reference.
B. CEMEX operates the Mine pursuant to Conditional Use Permit 4633 ("CUP
4633"), which was approved by the County subject to conditions of approval ("Condition/s") on
December 10, 1996. A copy of the Conditions of Approval for CUP 4633 is attached hereto as
Exhibit B. The County also certified the Final Environmental Impact Report ("FEIR") on
December 10, 1996.
C. CUP 4633 permits the use of the Site for "Mining and Accessories Use,"
including, but not limited to mining and excavation, on-site processing of aggregate materials,
reclamation of the site, and access to and from the site in accordance with the FEIR. CUP 4633
also permits the construction and maintenance of other manufacturing plants and facilities,
equipment and accessory appurtenances typical of a construction materials operation.
D. Mining operations at the Site are divided into three phases, all of which were
contemplated by CUP 4633 and analyzed in the FEIR. CUP 4633 approved specific excavation
and mining operations for Phase I and II. A Modification Application, as described below in
Recital G, will complete the final permitting for Phase III that previously was contemplated and
analyzed in the FEIR.
E. Pursuant to CUP 4633 and the FEIR,primary ingress and egress to and from the
Site for site access, including the transportation of materials, is provided via Roseland Avenue, a
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private access road in unincorporated County territory. Trucks exiting the Site proceed from
Roseland Avenue to Happy Camp Road, which eventually merges into California State Route 23
("State Route 23"). The trucks generally enter into the City's jurisdiction by way of State
Route 23 near its intersection with Championship Drive. The trucks take State Route 23 to
California State Route 118 ("State Route 118") and travel along State Route 118 until they are
no longer within the City's jurisdiction. Other than local deliveries, these trucks are subject to
County Conditions with respect to travel along state highways within the City as depicted in
Figures 13 and 40 of the FEIR, attached hereto as Exhibit C and incorporated herein by
reference. The truck route along State Routes 23 and 118 within the City is defined as the
"City Haul Route".
F. Pursuant to Condition 99(a) of CUP 4633, CEMEX must limit truck travel to
and from the Site to an average of 980 one-way trips per day Monday through Friday with a
daily maximum of 1180 one-way trips. Pursuant to Condition 99(b), CEMEX must limit truck
trips to 276 one-way trips per day on Saturdays with a daily maximum of 332 one-way trips.
The principles governing truck trip calculation are described in Condition 99 of CUP 4633.
G. On October 6, 2016, CEMEX submitted a Conditional Use Permit Modification
Application to CUP 4633,described as Modification Application PL16-0134 ("Modification
Application") to extend the life of the existing permit for an additional forty-nine (49) years, to
authorize mining in Phase III, and to increase the current limitation on the maximum disturbance
area and mining activity area("Project"). The Project is described in detail in the Project
Description Section of the Modification Application, which is incorporated herein by reference
and is attached hereto as Exhibit D. The Modification Application is pending a determination
by the County. If approved, the modified or amended CUP will likely be titled CUP PL 16-
0134, and for ease of reference will be referred to as such in this Agreement.
H. Pursuant to Sections 4.2, 4.2.5, and 4.14 of the Modification Application, the
proposed Project does not seek to change the Haul Route, or the quantity of truck trips used for
the Project, relative to previously approved CUP 4633.
I. As reflected in the City's General Plan Circulation Element, the City seeks to
provide a circulation system that promotes existing and planned land use objectives while
facilitating the safe and efficient movement of people, goods, and services into and out of the
City. Consistent with the Goals and Policies therein related to traffic issues, the City has already
expended approximately$1,400,000.00 in the last few years for property acquisition and
physical improvements for widening portions of State Route 23 within the City. CEMEX now
wishes to cooperate with the City in its efforts to further address traffic conditions along the
Haul Route. Accordingly, the Parties now desire to formalize an agreement for CEMEX's
voluntary monetary contribution to certain public improvements within the City in return for the
City's non-opposition of CEMEX's Project. .
J. The fees to be paid by CEMEX to City for the City Public Improvements, as this
term is defined in Section 2 of this Agreement, are intended by the parties to satisfy CEMEX's
obligations for traffic impact mitigation fees payable to City under Paragraph (B) of Section II of
the 2006 Reciprocal Traffic Mitigation Agreement between the City and the County.
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K. This Agreement is also in settlement of a dispute between the City and CEMEX
regarding potential impacts that CEMEX's Project, as proposed under the Modification
Application, has on roadways, intersections and traffic within the City and is intended to
resolve potential claims and lawsuits between the parties over those impacts and the County of
Ventura's processing of the Modification Application.
L. In adopting this Agreement, the City recognizes that it is forgoing an opportunity
to'request additional haul route restrictions and trip limitations to and from the Mine, and/or to
challenge the sufficiency of those to be imposed in addition to those already imposed by the
County and referred to in Recital F through CUP PL 16-0134, and that the City would have
vigorously pursued this opportunity in the absence of this Agreement. The City finds that the
improvements to be funded by this Agreement provide an alternative and sufficient approach to
address impacts associated with heavy truck traffic along the Haul Route.
M. This Agreement is exempt from environmental review under the California
Environmental Quality Act(CEQA) under the general rule that CEQA only applies to projects
which have the potential for causing a significant effect on the environment. Where it can be
seen with certainty that there is no possibility that the activity in question may have a significant
impact on the environment, the activity is not subject to CEQA. (State CEQA Guidelines
Section 15061 (b)(3)). By this Agreement, the City is not approving the CEMEX Project and
is not approving plans for, or committing the City to make improvements to any street
intersection inside the City. Accordingly, the Agreement is exempt from CEQA.
TERMS AND CONDITIONS
NOW THEREFORE, for consideration of the within covenants, terms and conditions,
and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Recitals. The Recitals above are true and correct and are incorporated herein by
reference.
2. Contributions to City Public Improvements. CEMEX shall make
contributions to the City in the form of a one-time upfront fee ("Fee") of$100,000.00 and
thereafter in the form of reimbursement payments ("Reimbursement Payments") totaling up to
an additional $1,400,000.00 for a total contribution to the City of up to $1,500,000.00 for City
costs to widen State Route 23 at its intersections with High Street and Poindexter/First Street
("Intersection" or the "Intersections"). The general scope of these two Intersection projects
includes the widening of State Route 23 from approximately 500 feet north of its intersection
with High Street to approximately 500 feet south of its intersection with Poindexter Avenue/First
Street, including the widening and realignment of the intersecting side streets along that segment
of State Route 23 within the City ("City Public Improvements"). The specific terms of the Fee
and Reimbursement Payments are as follows:
a. The Fee shall be paid to City on or before the sixtieth (60th) calendar day
following the Effective Date of this Agreement and not less than five (5) calendar
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days prior to any public hearing date on the Modification Application before the
County's Planning Commission.
b. The City, may at its discretion, undertake City Public Improvements for each
Intersection as separate projects and in the order City deems appropriate.
c. CEMEX agrees to make a Reimbursement Payment to City for 11% of the total
cost, not to exceed $700,000 of City Public Improvement costs, subject to
Section 2e., below, for the first Intersection project undertaken by the City. The
Reimbursement Payment shall become due and owing to City within sixty(60)
days of the date the City executes a construction contract for physical
construction of that first Intersection project or within sixty(60) days after City
submits a statement to CEMEX enclosing a copy of the executed construction
contract, whichever occurs later.
d. The costs that are subject to the Reimbursement Payment by CEMEX include,
but are not limited to, not only the dollar amount of the construction contract, but
also the costs incurred by City that precede execution of the construction contract
that are for planning, environmental, engineering, acquisition of right-of-way
(including relocation costs), appraisal, legal and advocacy services, utility
relocation, project administration and management, and permit fees for that first
Intersection project. Project administration costs include City staff time billed at
hourly rates approved by City Council Resolution.
e. Upon completion of the first Intersection project, City will provide CEMEX a
statement of additional costs incurred during the construction of the first
Intersection project, including but not limited to, any City approved change
order or bid quantity adjustment to the construction contract, and other City
approved additional costs for project administration, contract management and
inspection for City Public Improvements for that first Intersection project. The
costs may also include the costs of cooperative agreements with, and other
billings by, CalTrans, SCRRA, UPRR, VCTC and County of Ventura to perform
some of the required work. Within sixty(60) days of the date of that statement,
CEMEX will make a Reimbursement Payment for 11% of those additional
costs, up to an additional $100,000.00, even if the total payments by CEMEX for
City Public Improvements for the first Intersection project exceeds
$700,000.00, such that the total not-to-exceed maximum payment by CEMEX for
the first Intersection project would be $900,000.00 (upfront $100,000.00 Fee,
plus not-to-exceed $700,000.00 Reimbursement Payment,plus maximum
$100,000.00 additional Reimbursement Payment for additional costs for first
Intersection project).
f. The same process specified in paragraphs (c) - (e) above shall apply to the second
Intersection project undertaken by City except that any balance of$700,000 not
paid by CEMEX for the first Intersection project shall be carried over to the
second Intersection and so long as CEMEX's total contribution to City Public
Improvement in the form of the Fee and all Reimbursement Payments for the
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first and second Intersections does not exceed 11% of the total costs of the City
Public Improvements capped at a total amount not to exceed $1,500.000.00.
g. The Parties acknowledge that the proposed City Public Improvements may not
be feasible due to expense, right-of-way acquisition, technical issues, or
difficulties obtaining requisite approvals from the relevant agencies and entities,
including but not limited to, SCRRA, Caltrans, and Union Pacific Railroad.
Nothing in this Agreement shall require the City to approve or construct the City
Public Improvements, and if none of the City Public Improvements are
undertaken by the City by the expiration of this Agreement, CEMEX shall not
be entitled to a refund of the upfront $100,000.00 Fee.
3. Contingent Contribution to State Route 23 Bypass Project. In addition to and
not as an alternative to the Fee and Reimbursement Payments specified in Section 2, CEMEX
also agrees to accept the County's inclusion of a County Condition of approval of the
Modification Application, which is likely to be titled CUP PL 16-0134, which Condition shall
consist of a voluntary fair share contribution to a future State Route 23 Bypass Project
("Bypass Condition"). The specific requirements are as follows:
a. The Bypass Condition shall be identical in substance to bypass conditions that
have been included in recent County approvals of the Wayne J Sand and Gravel
Mining Facility(Condition#67, Conditional Use Permit No. PL13-0116); and
Grimes Rock Mining Facility(Condition#68, Requirements, Modified
Conditional Use Permit 4874-2 [PL12-0159].
b. CEMEX agrees that it shall submit, within ten(10) days following the Effective
Date of this Agreement, a written request to the County that the County include
the Bypass Condition as an "Applicant Proposed Condition" to be included as a
County Condition of approval of the Modification Application, which request
shall be copied to the City.
c. In the event the County does not include the Bypass Condition as a Condition
of approval of the Modification Application, then the City, at its discretion, may
elect, no later than ten(10) calendar days following approval of the Modification
Application to declare the Agreement null and void.
4. Obligation to Not Oppose. From and after the Effective Date of this Agreement,
City agrees and covenants to not oppose directly, or indirectly through third parties via financial,
strategic, oral, written or other means, CEMEX's Project as proposed in the Modification
Application for CUP PL 16-0134, including,but not limited to, all proposed construction,
development, uses, mining operations, and hauling activities set forth in the Modification
Application and all construction, development, uses,mining operations, and hauling activities
subsequently approved by the County in connection with CUP PL 16-0134. If the
Modification Application is revised prior to final approval, to change the City Haul Route
within the City or the quantity of truck trips currently permitted along the City Haul Route
within the City as described in Sections 4.2, 4.5, and 4.14 of the Modification Application, then
the City may elect to be relieved of its agreement and covenant to not oppose the Project as
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proposed in the Modification Application, afterfirst notifying CEMEX of such election, and
the Agreement shall be declared null and void. For purposes of this Agreement, "Not Oppose"
means that City agrees not to submit to the County a letter of opposition to approval of the
Modification Application and/or CUP PL 16-0134, and the City will in no manner question
any aspect,procedural, substantive or otherwise, of the Modification Application and/or CUP
PL 16-0134, nor speak at, submit anything, or encourage anyone else to appear or oppose any
aspect of the Project, Modification Application and/or CUP PL 16-0134, at any public hearing
or otherwise. CEMEX may, at its discretion,present this Agreement to the County at any time
after the effective Date of the Agreement as evidence of the City's non-opposition to the
Project, Modification Application and/or CUP PL 16-0134. City's obligation to Not Oppose
the Project precludes City from proposing to the California Department of Transportation any
restrictions on those portions of State Route 23 and State Route 118 as they are currently
located within the City that would in any manner interfere with or affect CEMEX's Project as
described in the Modification Application, including any additional conditions imposed by the
County upon its approval of CUP PL 16-0134. However, nothing contained herein shall
preclude the City from requesting the California Department of Transportation, the California
Highway Patrol, or the City's law enforcement officers to implement or enforce state laws as
they are currently in effect or as they may be amended from time to time regarding the regulation
of traffic on State Route 23 and State Route 118. Without limiting the above: (i) if the City
Haul Route within the City is eliminated or made infeasible for use by trucks travelling to or
from the Mine for any reason before CEMEX makes payment of the Reimbursement
Payments, then CEMEX's obligation to pay the Reimbursement Payments shall be voided; (ii)
if the City Haul Route within the City is eliminated or made infeasible for use by trucks
travelling to or from the Mine for any reason after CEMEX makes payment of the
Reimbursement Payments, then CEMEX shall be able to seek a refund, unless a haul route
though the City similar or comparable to the City Haul Route through City (e.g., Grimes
Canyon Road or Spring Road instead of State Route 23) is made available to trucks travelling
to or from the Mine, at the time that the City Haul Route within the City is eliminated or made
infeasible. City's obligation to Not Oppose the Project also precludes City from challenging
the Modification Application and/or CUP PL 16-0134 under the California Environmental
Quality Act by way of public comment or legal action. Nothing in this Section or Agreement
shall preclude any employee or official of the City, except for any "High Ranking Official" of
the City, from exercising his or her independent and personal First Amendment rights to speak in
their personal capacity, and not on behalf of the City, regarding the Project and no such
opposition, answer or speech shall be deemed a violation of this Section or any other Section of
this Agreement. For purposes of the Agreement and this Section, High Ranking Official of
City shall mean the following officials of the City: Mayor, City Councilmember, City Manager,
Assistant City Manager, City Attorney, City Engineer/Public Works Director and Community
Development Director. The provisions of this Section shall become null and void if CEMEX
does not make the full amount of the payment of either the Fees or Reimbursement Payments
specified in Section 2 on or before their due dates as specified in Section 2, subject to a thirty
(30) day notice and opportunity to cure period for the Reimbursement Payments.
5. Minor or Non Substantial Modifications. For the duration of this Agreement,
City further agrees to Not Oppose CEMEX's Project and any applications submitted by
CEMEX to the County for minor or non-substantial modification to the Project and/or CUP PL
16-0134. For purposes of the Agreement, "Minor or Non-Substantial Modification" shall
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mean any amendment to the Project that would not result in any change to the City Haul Route
within the City, or the quantity of truck trips currently permitted along the City Haul Route
within the City as described in Sections 4.2, 4.2.5, and 4.14 of the Modification Application.
In other words, for purposes of the Agreement, changes to the Project shall be considered a
substantial modification if they result in any change to the City Haul Route within the City, or
the quantity of truck trips currently permitted along the City Haul Route within the City, as
described in Sections 4.2, 4.2.5, and 4.14 of the Modification Application. The provisions of
this Section shall become null and void if CEMEX does not make the full amount of the payment
of the Reimbursement Payments specified in Section 2 on or before their due dates, as
specified in Section 2, subject to thirty(30) day notice and opportunity to cure period.
6. Future Comments. Nothing in this Agreement shall preclude City from
commenting upon any future Project-related development applications, approvals, conditions, or
land uses, which are not Minor or Non-Substantial Modifications, as defined in this
Agreement. In other words, the City shall have the right to comment on any future application,
approval, condition or land use that would result in a change to the City Haul Route within the
City, or the quantity of truck trips currently permitted along the City Haul Route within the
City, as described in Sections 4.2, 4.2.5, and 4.14 of the Modification Application. In addition,
nothing in this Agreement shall preclude the City from opposing, through oral, written or other
communications to the County, or from any action in court to set aside, enjoin or otherwise
invalidate any temporary exception to the truck trip limitations that are contained in the
conditions of approval of CUP 4633 or the conditions imposed on the Modification Application
that are sought by CEMEX pursuant to Section 8107-9.6.12 or any similar provision of the
Ventura County Non-Coastal Zoning Ordinance. Any limitations or restrictions on the City
contained in this Section shall become null and void if CEMEX does not pay the full amount of
the Reimbursement Payments specified in Section 2 on or before the due dates, for those
Reimbursement Payments as specified in Section 2, subject to a thirty(30) day notice and
opportunity to cure period.
7. Third Party. This Agreement is made and entered into for the sole benefit of the
Parties. No term or provision of this Agreement is intended to benefit any person or entity not
a party hereto, and no such other person or entity shall have any right or cause of action
hereunder.
8. Release of Claims. Other than the rights and obligations of the Parties in this
Agreement, City and CEMEX, each irrevocably,unconditionally and fully waive and release
and covenant not to sue the other Party, its present and future owners,members, managers,
shareholders, directors, councilmembers, officers, subsidiaries, affiliates, related entities,
partners, employees, agents, representatives, attorneys, consultants, predecessors, successors and
assigns (collectively, "Released Parties"), from and on account of any and all claims, demands,
disputes, liabilities, causes of action or charges ("Claims"), known or unknown, which either
Party has or may have against the Released Parties, arising out of the County's approval of the
Project as described in the Modification Application. Excluded from this release are any and
all City Claims arising out of vehicles travelling to or from the Mine, causing actual physical
damage to City property or persons Nothing in this Section or in the Agreement shall give rise
to any new standards, new duties, new contractual obligation or liabilities with respect to the
Project or any approvals of the Project, that are not otherwise available under the law. In
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addition, with respect to any lawsuit filed to challenge the validity of the Agreement or the
authority of any Party to enter into the Agreement(collectively, "Challenge") the Parties agree
to the following: (i) if a Challenge is filed before CEMEX pays Fee or Reimbursement
Payments,but the City still bills CEMEX for such payments, and CEMEX does in fact make
such payments, and the Agreement is subsequently invalidated, then CEMEX shall be entitled
to a refund of any Fee or Reimbursement Expenditures paid to the City; and (ii) if a
Challenge is filed after CEMEX pays Fee or Reimbursement Payments, and after the City has
actually expended such funds, and the Agreement is subsequently invalidated, then CEMEX
hereby waives its right to seek a refund of any such funds actually expended by the City.
9. Waiver of California Civil Code Section 1542. City and CEMEX
acknowledge their familiarity with and understanding of California Civil Code Section 1542 and
hereby expressly waive any rights they may have or claims to have against the other party, their
present and future owners, members, managers, shareholders, directors, officers, subsidiaries,
councilmembers, affiliates, related entities, partners, employees, agents, representatives,
attorneys, consultants,predecessors, successors and assigns (collectively, "Released Parties"),
under the provisions of California Civil Code Section 1542, which provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH
THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS
OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY
AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
City
CEMEX
10. Representations. The Parties represent and warrant that they have read and
understand this Agreement, are entering into this Agreement knowingly, voluntarily, and with
the advice of counsel, have thepower and authority to enter into this Agreement, and the
persons signing on behalf of the Parties have been granted the express authority to do so. The
Parties further represent and warrant that all necessary approvals, authorizations and resolutions
have been obtained and/or been adopted with respect to this Agreement and that the execution
and performance of this Agreement by each of the Parties will not result in a breach of or
default under any material agreement, commitment, contract (written or oral), or other material
instrument, to which it is a party or by which any of its assets are bound or affected. The Parties
also represent and warrant that they have not made any promise, representation, or warranty,
whether express, implied, or statutory, which is not contained in this Agreement to induce the
execution of this Agreement,but instead has executed, approved and entered into this
Agreement solely upon independent investigation of any and all facts deemed appropriate. The
Parties are not bound by any representations or inducements which are not set forth in writing in
this Agreement.
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11. Cooperation in the Event of Legal Challenge. If a third party, including
without limitation, any individual, organization, corporation or association, city, county, state or
federal agency, challenges or contests the legality of this Agreement, the authority of either of
the Parties to enter into this Agreement, or any action taken to comply with this Agreement, in
any judicial, administrative, or similar forum, the Parties shall take the following actions:
a. Defend vigorously this Agreement, the authority of either of the Parties to enter
into this Agreement, or any action taken to comply with this Agreement, and
oppose and defend against any attempt to prevent either of the Parties from
performing any of the requirements contained in this Agreement.
b. Prosecute fully such defense or opposition set forth above and, if the judicial,
administrative or other action or proceeding is not dismissed voluntarily, obtain a
final order or decision from the judicial, administrative, or other decision maker,
unless the Parties mutually agree to a settlement of the litigation.
c. Each of the Parties shall support any request by the other of the Parties to
intervene or participate in any such judicial, administrative or other action or
proceeding. Each of the Parties promptly shall provide the other of the Parties
with a copy of any correspondence, complaint, filings,pleadings, court orders or
other non-privileged writing concerning an administrative or judicial proceeding
or action described herein.
d. Each of the Parties shall be responsible for its expenses incurred in defending
against any third-party challenge.
e. To save legal defense costs, the Parties may agree to have one attorney or firm
provide a joint defense to any third-party challenge and to split the costs of that
defense as thereupon agreed by the Parties.
12. Further Assurances. Each Party agrees without further consideration to execute
and deliver such other documents and take such other action as may be reasonably requested by
the other Party to consummate more effectively the purpose or subject matter of this
Agreement.
13. Amendments or Modifications. This Agreement may be amended or modified
by the mutual consent and agreement of the Parties in writing.
14. Notices. Any notice, approval, disapproval, demand, or document ("Notice")
which any Party may desire to give to any other Party under this Agreement must be in writing
and delivered via personal service, first class Certified Mail, or overnight courier, to the Party to
whom the Notice is directed at the address of the Party as set forth below, or at any other
address as that Party may later designate by Notice.
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To City: City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
With a copy to: Richards, Watson& Gershon
355 South Grand Avenue, Suite 4000
Los Angeles, California, 90071
Attn. Kevin G. Ennis
To CEMEX: CEMEX Construction Materials Pacific, LLC
3990 E. Concours St., Suite 200
Ontario, CA 91764
Attention: Christine Jones
With copies to: CEMEX
1501 Belvedere Road
West Palm Beach, Florida 33406
Attention: General Counsel
Jeffer Mangels Butler& Mitchell LLP
2 Embarcadero Center, 5th Floor
San Francisco, CA 94111
Attention: Kerry Shapiro, Esq.
Any Notice shall be deemed delivered upon receipt by personal service or on the third (3rd) day
from the date it is postmarked if delivered by first-class mail, Certified and postage prepaid,
return receipt requested, and on the next business day if sent via overnight courier.
15. Remedies. Remedies for breach of this Agreement shall include injunctive relief
and/or specific performance; in addition, any claims for damages shall be limited as follows: (i)
any claims by CEMEX for damages against the City shall be limited to seeking a refund of any
Reimbursement Payments paid pursuant to Section 2 for breach of Sections 4, 5, or 6 of the
Agreement; and (ii) any claims by the City for damages against CEMEX shall be limited to
seeking unpaid Fees or Reimbursement Payments for breach of Section 2 of the Agreement.
16. Attorneys' Fees and Costs. In the event of any dispute between the Parties
arising out of or relating to this Agreement, including, but not limited to, its enforcement,
interpretation, or performance, the prevailing Party in any such action or proceeding, including
any bankruptcy proceeding or adversary proceeding to interpret or enforce this Agreement, or
any of its terms, shall be entitled, in addition to any judgment or award upon such action or
proceeding, to an award for all reasonable costs and expenses (including costs of all legal or
administrative proceedings or hearings) incurred by such prevailing Party, including, without
limitation, reasonable attorneys' fees and related costs incurred by such Party in connection with
such actions and proceedings and the enforcement of any such judgment or award and upon
prevailing in any appeal relating thereto. The term "Prevailing Party"means the Party
obtaining substantially the relief sought, whether by compromise, settlement or judgment.
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17. Governing Law; Jurisdiction and Venue. This Agreement shall be governed
by and construed in accordance with the laws of the State of California without regard to conflict
or choice of law. The Parties hereby consent to the jurisdiction of the California Superior Court
for purposes of enforcing and interpreting this Agreement with venue being in one of the
following counties, as mutually agreed to by the Parties: Ventura, Santa Barbara, Los Angeles,
Orange County, or Riverside.
18. Change in State or Federal Law. If a change in state or federal law by statute or
judicial decision materially affects the Parties' obligations or rights under this Agreement, the
Parties shall take such actions as may be reasonably necessary to modify the Agreement to
conform the Parties' duties and rights under this Agreement to new state or federal law.
19. Rules of Construction. The Parties, including their counsel, have participated in
the preparation of this Agreement, and this Agreement is the result of the joint efforts of the
Parties. This Agreement has been accepted and approved as to its final form by all Parties and
upon the advice of their respective counsel. Accordingly, any uncertainty or ambiguity existing
in this Agreement shall not be interpreted against any Party as a result of the manner of the
preparation of this Agreement. Each Party to this Agreement agrees that any statute or rule of
construction providing that ambiguities are to be resolved against the drafting Party shall not be
employed in the interpretation of this Agreement and are hereby waived.
20. Severability. Any provision of this Agreement that is declared or determined by
a court of competent jurisdiction to be prohibited or otherwise held invalid, void, or
unenforceable shall be ineffective only to the extent of such prohibition or invalidity, and shall
not invalidate or otherwise render ineffective any of the remaining provisions hereof.
Notwithstanding the foregoing, if the provisions of Section 2, 3, 4, or 6 of this Agreement are
declared invalid, void or unenforceable, such determination shall not be severable from the rest
of the Agreement and the entire Agreement shall become void and unenforceable.
21. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the Parties, and their respective successors in interest, assigns, heirs, and
personal representatives. No Party shall have the right to assign or transfer this Agreement or
any rights or obligations herein without the express written consent of the other Party in its sole
discretion; provided CEMEX may assign this Agreement to any party purchasing or leasing the
Site, or any affiliate, without consent.
22. Time is of the Essence. Time is of the essence for this Agreement.
23. Effective Date. This Agreement shall become effective on the date that both
Parties have executed the Agreement ("Effective Date").
24. Duration of the Agreement. The term of this Agreement is for a period of
twenty(20) years, as of the Effective Date. The duration of this Agreement may be extended
by the mutual written consent of the Parties.
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25. Headings. The headings of paragraphs of this Agreement are inserted solely for
the convenience of reference and are not a part of and are not intended to govern, limit, or aid in
the construction or interpretation of any term or provision hereof
26. No Waiver. No failure or delay on the part of any Party in the exercise of any
right,power, or privilege hereunder shall operate as a waiver thereof, and no single or partial
exercise of any such right,power, or privilege shall preclude a further exercise thereof or of any
other right,power or privilege.
27. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed as original but all of which together shall constitute one and the
same instrument. Facsimile or email transmission may be used to effectuate and bind the Parties
to this Agreement.
28. Entire Agreement. This Agreement and the exhibits attached hereto constitute
the entire agreement between the Parties with respect to the subject matter hereof, and
supersedes all other agreements, oral or written,between the Parties with respect to the subject
matter. No claim of waiver, modification, consent, or acquiescence with respect to any provision
of this Agreement shall be made against any Party, except upon the basis of a written
instrument executed by or on behalf of such Party,which written instrument must expressly
identify this Agreement. Each of the Parties acknowledge and represent that they have read the
Agreement carefully and that there have been no oral or written statements made to them by any
other Party that contradicts, varies or would change the meaning of any statements, promises or
agreements set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
Effective Date set forth above.
"CEMEX" CITY:
CEMEX Construction Materials Pacific, LLC, CITY OF MOORPARK, a California
a Delaware limited liability company municipal corporation
By: By:
Print Name: Print Name:
Title: Title:
ATTEST:
Maureen Benson, City Clerk
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Exhibit A
CEMEX Site Location Map
Exhibit B
CEMEX Conditions of Approval for Conditional Use Permit 4633
Exhibit C
CEMEX 1996 Final EIR, Figures 13 and 40
Exhibit D
CEMEX Modification Application PL 16-0134, Project Description
Exhibit E
CEMEX Conditional Use Permit Extension Traffic Impact Study, dated
January 9, 2017
Above noted Exhibits A ® E are not
included with this Draft Agreement but
will be included in the Final Agreement
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