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Home My WebLink AboutAGENDA REPORT 1996 0807 CC REG ITEM 10LAGENDA REPORT CITY OF MOORPARK s/7-___ � TO: The Honorable City Council r FROM: Steven Kueny, City Manager, DATE: August 1, 1996 SUBJECT: Consider Proposed Development Agreement with Special Devises, Incorporated (SDI) BACKGROUND: On May 23, 1996, the Mayor appointed an Ad Hoc Committee comprised of himself and Councilmember Brown to discuss this matter with SDI. DISCUSSION: City Ordinance No. 59 sets forth the City's policies and procedures for consideration and action on Development Agreements. On August 7, the City Council will be requested to review the status of the Development Agreement discussions and determine if the Planning Commission should be directed to proceed with the required public hearing. The Planning Commission will then need to recommend approval, approval with modifications, or denial of the Development Agreement. Because of previous commitments by the City to fast track the entitlement process for the SDI project, the Planning Commission and City Council hearing for the Development Agreement have been advertised for August 12 and August 21, respectively. Upon receipt of the Planning City Council can then conduct adoption of an agreement. STAFF RECOMMENDATION: Commission's recommendations, the a public hearing to consider Proceed with the public hearing process. SK:kd c: \docs \wpwin \ccagenda \sdi.agr 000319 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 § 6103 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 C: \citymgr \sdiagr.wpd DEVELOPMENT AGREEMENT This Development Agreement ( "Agreement ") is made this day of , 1996, by and between the CITY OF MOORPARK, a municipal corporation, ( "City") and T1.Tr.A77 T1l177 T T a California corporation ("Developer ") Yri "consideration of the mutual covenants and agreements 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: A. Pursuant to Government Code Section 65864 et sea. and Ordinance No. 59 of City, City is authorized to enter into binding contractual agreements with any person having legal or equitable interest in real property for the development of such property in order to establish certainty in the development process. B. Developer is in escrow to purchase in fee simple certain real property in the City of Moorpark, knewn as mee-r - azta lf? as more specifically descr or in Exhibit A. a c >> rr r >a and incorporated herein sc this reference. on C. Developer has received approval of the following land use entitlements from City for the development of the Property: General Plan Amendment No 95 =1 �4—I, Zone Change No. Vesting Tentative Tract Map ('VTTM) No. 4928j;z at:Tidtt1 Planned Develo 94 1 pment Permit `RPD,, No. iLi et-- f�T3 --�i e--9 4- Implementation of these land use entitlements is subject to a Mitigation monitoring program that was approved by City on the date first above written (the Mitigation Monitoring Program). Collectively, the land use entitlements and the Mitigation Monitoring Program are referred to herein as the Project Approvals. The Project Approvals provide a comprehensive plan for the development of the Property. That development is referred to herein as the Project. D. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with this Agreement and the Project Approvals. In C: \citymgr \sdiagr.wpd consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extend specified in this Agreement. E. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with this Agreement and the Project Approvals. 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 and to provide the public benefits specified in this Agreement. F. City and Developer each acknowledges and agrees that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable. The parties further acknowledge and agree that this Agreement is consistent with the General Plan of City as amended by General Plan Amendment No. -94-1 ............... ............... ............... G. On Mareh 4, 1996, the Planning Commission of City held a duly noticed public hearing on this Agreement and recommended approval of the same. H. On Marei., 20, 1996, the City Council of City (the "City Council ") held a duly noticed public hearing on this Agree- ment, which hearing was continued to Mareh 27, 1996 , 1996 and April 10, 196 acrd-- App -1-7,— 996 and by Ordinance No. (the "Enabling Ordinance ") approved the same. 2. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to the benefit of, the parties and their successors in interest and constitute covenants which run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include any successors in interest to the parties. 3. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property: (a) Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals. (b) Development Standards. All design and development standards, including but not limited to density or intensity of use, maximum height and size of buildings, that are applicable to the Property are set forth in (I) the Project Approvals, (ii) Title 17 (Zoning) of the Moorpark Municipal Code as the same exits on the date first above written, and (iii) Section 5 hereof. C: \citymgr \sdiagr.wpd 2 (c) Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in (I) the Project Approvals and (ii) Section 6. (d) Modification and Extension of Certain Project Approvals. Throughout the term of this Agreement, Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this Agreement, to apply to City for minor modifications to PD No. 944: anelUzNe —34—x— The approval or conditional approval cf`ariy such minor 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. It is understood by the parties that .RPD No. 94— 4: and nrrn GUP Ne.- 94— 4:0--642. may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, Developer shall have the right, at its election, to apply for a new permit to replace the permit that has expired or is about to expire. 4. Schedule of Development. The Ge f Ge ___ Ne. 94 4: shall net la Gelf GeuT-se residential units permitted b RP9 Ne. 94 4: w A-hin fifteen (!Sy 5. Vesting of Development Rights. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, National Electrical Code, Uniform Plumbing Code, Uniform Mechanical Code, Uniform Housing Code, Uniform Code for the Abatement of Dangerous Buildings, Uniform Code for Building Conservation and Uniform Administrative Code (Building Codes) most recently adopted by City and in effect at the time a plan check or permit is required. The design a .''.-- =eei�a�r�_a�iE�- �t=e�ssA y —sz item not addressed in the Any b PaiApt*rl shall e governed by the applicable provisions of the Moorpark Municipal Code or other City ordinance, rule, regulation, or policy as most C: \Citymgr \sdiagr.wpd 3 recently adopted by City and in effect at the time that Developer's submittal is received by City. Any minor modification to, or time extension of, a Project Approval and any application for a new Project Approval shall be on the basis of the ordinances, rules, regulations, and Policies as most recently adopted by City and in effect at the time the request for the minor modification, extension or new Project Approval is received by City. The following shall be prepared consistent with the ordinances, rules, regulations, and policies as most recently adopted by City or other applicable agency and in effect at the time they are submitted to City for review and approval: Erosion and Sediment Control Plan (Condition Nos. 48-38 of VTTM No. ^n�(}{j) ; Master Drainage and Flood Control Improvement. Plan (FLIP) (Condition Nos. 92, 93-nd 94 of VTTM No. 4928 00� ) ; and Bank Protection Plan (BPP) (Condition Nos. 9S and 9-6 of VTTM No. 4928t-`: 6. Developer Agreements. (a) (4) The terms and conditions for the payments required by Subparagraphs above shall be those contained in a promissory note in the form of Exhibit (the Promissory Note) , which shall be secured by a deed of trust aiid the�fh.b<D: (the Deed of Trust) , both of which are attacFied to this Agreement and by this reference are incorporated herein. Developer shall execute the Promissory Note C: \citymgr \sdiagr.upd 4 - - - _ -- - - - - -- - • (a) (4) The terms and conditions for the payments required by Subparagraphs above shall be those contained in a promissory note in the form of Exhibit (the Promissory Note) , which shall be secured by a deed of trust aiid the�fh.b<D: (the Deed of Trust) , both of which are attacFied to this Agreement and by this reference are incorporated herein. Developer shall execute the Promissory Note C: \citymgr \sdiagr.upd 4 and Deed of Trust and shall cause the Deed of Trust to be recorded within seven (7) days after it takes fee title to the Property. deed -e€ trust - �� time, in age : Tom: —e€ -tyre Deed-- e€� Develeper -shall, wrtirttt- seven (7) �a�'y- uf .zrztr e Lens -in-t4ile f eiya - ef -Exhibit 9, wh i- eh i s a} t .. e a e- acid by this f )rated her-ei i (30) days ef reques shall, t by i emeeute any deeuraents and take trust -s2et i n� n�i r° th 1 eME leans en- tte--- terms and eenditiel�s -set eedof ze- �ir-- �RreSe- -hall -rrEltd but - aiz-xvt r inte- eserew= At ne time shall the Teed -ef Trust be-- euberdinate to met - tpressljam y the Deed e€- Trust - =zd� -- (a) (5) Developer acknowledges that City may, at its option, record a request for notice under Civil Code Section 2924b in accordance with the provisions thereof. MOMMEW (f) Developer shall grant, in a form acceptable to City, a conservation easement to retain Lots 21 fi , z , "' , 8 —iii —i '�cr- ii �L''► -� 2 4 ; as designated pursuant to VTTM No .- Q3; in a predominantly open space condition consistent with Civil C:\dtymgr\sdia9r.wpd 5 (f) Developer shall grant, in a form acceptable to City, a conservation easement to retain Lots 21 fi , z , "' , 8 —iii —i '�cr- ii �L''► -� 2 4 ; as designated pursuant to VTTM No .- Q3; in a predominantly open space condition consistent with Civil C:\dtymgr\sdia9r.wpd 5 The conservation easement ever 11 shall be 2 -1 - ±6 recorded concurrently with the recordation of Phase 1 of the final subdivision map for Vesting Tract map '0 (9) Develeper shall grant G±tF an irrevee dedieatj:e ef- Let 24:7 as designated pur-sida Rt 4--e VTq?M Ne. 4928. te be used i er Purpeses te be deterfained GAy's sele (h) Prior to issuance of a zone clearance for the building permit for the el:u het",e permitted by C-Up Ne. 9 Developer shall pay .9 to 1 y an amount equal to Twenty C:\CitYmgr\sdia9r.wpd 6 Five Cents ($.25) per square foot of elub ---use building area to fund park improvements. (2) The Air Quality Mitigation Fee shall be paid by Developer in the amount and at the time stated in conditions of the Project Approvals. (j) Within thirty (30) days of execution of this Agreement, Developer shall pay all outstanding City processing and environmental impact report costs related to VTTM No. 4928, RD--94- :. >::.; ;:.::.: ; ..:::;:.::::: >.. <.s:: `f >:;:. 9 .:: , and Zone Change No. 94=i Vi and for review" of�� h1i Agreement ": C:\citymgr\sdiagr.upd 7 \citymgr \sdiagr.wpd C: \citymgr \sdiagr.wpd 7. City Agreements. (a) The Project shall be exempt from the provisions of Chapter 17.38 (Hillside Management) of the Moorpark Municipal Code. (b) The Project shall be exempt from any growth management ordinance that is adopted by the City Council or by initiative of the electorate. (c) If requested in writing by Developer and limited to City's legal authority, City shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer which are outside City's legal boundaries. The process shall generally follow Government Code Section 66457 et sea. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs and City staff costs. (d) Whenever possible, City shall process plan checking for the Project in an expedited manner. (e) The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project prior to City Council approval of the final subdivision map for VTTM No.$pq, Said early grading agreement shall be consistent with the conditions of the Project Approvals and contingent on City Engineer and Director of Community Development accepting of a Performance Bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of ...th.e..... rough gradin ; construction of �a.e: �h ace s and all related improvements :...... ;: � tion of ;:.;..Y.,�- x,.::::�r.,.t.:. • ' n u O liza ns ' } t��g required ewe g on .r....... .... �r =� construction of pe$a i}e- e _water line a ie <<1 rr extensionsand awn wale ��; construction of all required drainage improvements; and implementation and maintenance of habitat restoration (as required by the mitigation monitoring program) . In the case of failure to comply with the terms and conditions of the early grading agreement, the City Council may by resolution declare C:\6tYmgr\sdiagr.wpd 10 the surety forfeited. Upon completion of rough grading and erosion control plan compliance to the satisfaction of the City, and following recordation of all phases of the Final Map for VTTM No. $ilt the City Council may reduce the amount of the bond; however, the bond must be kept in full force and effect for a minimum of one year following completion of rough grading to the satisfaction of the City to ensure adequate erosion control and revegetation. (f) The fees for the Los Angeles Avenue Area of Contribution and the Gases ReadiGabbert Read Area —env t eelleetive 1 referred to as AOC fees, shall not be required to be paid by Developer until the time of issuance of a zone clearance for the first building permit ??'x? for eae -e ^� Ic €- tie -z--� residential -fie the Projec s :::; ,::Y; .I...:ti: ::;::: .7110111 ne Lne aollar amount in effect ... a aforementioned zone clearance emeept that. The AOC fees Genmeneemen -E)art-e -mod sha 1 1 him ,a i ,I (g) The required to be paid clearance for the residentia! lots i ,rne auu Tees ssuance of the Citywide Traffic Mitigation Fee shall not be by Developer until prior to issuance of a zone 24-6 the building permit for each of the 6 ::..:... n thePr.o.j.ect. The::. :fee is £.3 ► per 1e ........:..::::::::..;.:.:.;:<.;:.;:.:: . >:: >: >:.:::;:.;;:.;:<.;.;:.;;; ua z The fee shall be adjusted annuall commencin orie........ :.: ::.::. Y ( g year after approval of VTTM No. at?k) by any increase in the Consumer Price Index (CPI) until paid in full. 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 month of January of each year . — Per the ael f - 14Q Ili 4 mom..- ,mac:... I _ -- - - -- — 'rne tee amount shall be adjusted annually Pursuant to the language above commencing one year after approval (h) in ea -vim -p a f- t- -ded -i eaten —� 3 1 <? development fees controlled by City for 1 ---P i =� -- =ez- the Project shall not be required to be q paid by Developer until the time of issuance of zone clearance for the first building permit for each lot, unless the fee is otherwise due at a later time. Development fees shall not include fees for plan checking, permits, processing and other services. Park in lieu - z- fees - fer e a-eh C:\Citymgr\sdiagr.wpd 11 (I) Upon the effective date of this Agreement, City shall allow the following: (1) Recordation of the Final Map for VTTM No.492&' in as ............... many as eight } phases consistent with the phasing plan shown on the Phasing Plan, dated April !7, 3946 , on file in the office of the City Clerk of City and the applicable conditions of approval. Prier te appreval ef Phase subdivider -- shams -tee- required 1 ef the t e- preside Final -a-t Map, t en yea-r surety fer trail eenstruetien, as determined by the grading, , a" map -- €emsegg , and trail staging ar (4) Developer shall be allowed to pay the air quality mitigation fee of $834.99 per dwelling unit—prior to issuance of a zoning clearance to allow plans to be submitted for building permit plan check instead of paying the fee for all lots prior to approval of a final map. The -air s' • ^ , ; 4 1' ; t ' gatienfe e f erthe -g e'er -eeur s may be paid in three payments instead ef paying the fun -apppr a =v =a l e €--a-- final map. - The first Date, in the affieunt ef and the seeend payment r fellewing the Gems- Gearse Genmeneement - Date, and the +-w'ra payment in the ameunt ef — $45,3$8.99 shall be made twe years fellewing the Gelf Getirs e- Date- C: \citymgr \sdia9r.wpd 12 MEMO A 3 way step sign shall be previded 6f —"^" Street an hP— f33se egret s-- i - -* :th tra€fie "c at the interseetien — entry -drive. -re a yid e 2-eigint"t (8) feet 2 twelve feet 4:-feurtee.- 114.1 bikelanee-, travel lanes; feet "G" ems ways i ffledian at Street Entranee ineluding three ihay--,A-ep at eldbheuse -n -per -t- 1 at entry di-iv-e+ A 3 way step sign shall be previded 6f —"^" Street an hP— f33se egret s-- i - -* :th tra€fie "c at the interseetien — entry -drive. -re a yid e —e Similar --�nderbridge aeeessway, the bridge to -,, street, a— tunnel, shall be eenstrueted under ems enable tire -- :5th h e l es --fie the-West shall be Giit - t rfe� The ennel a-c-- en eeting- he— g o l f eeurse . the interseetie �4t�i�� Tham—t -unreel f' Street and the elubheuse entry ti =a aye requxrefaent �- a - �e—dP �etP -n -per -t- 1 at th C:\citymgr\sdiagr.wpd 13 deeislen en the --Ate ity's ent eeSt shall be baBed upen the fees, heurly in ges and- time -e Gity rates effeet at the preeessing. Amenelment within hundred shall ffiake a deeisien en the ene' aetien to initiate eensideratien eighty (4:89) days ef the ef the Amendment. z CIE E OWN.-VTo z z z Moor-M-CZ009--we z z Z-734 replaeed with ether spaees eensistent with eenditiens of appreval and applieable previsiens ef the Meerpark. ��nielpal Gede. A reeipreeal aeeess easement shall alse be reeerded prier te eeeupaney appreval ef either gel:-f eetir-se, to ensure- that the elubheuse aeeess read and parking areas serve beth eeurses The easements shall be maintained in full feree fer as leng as UP Ne-r-94-1 is in effeet. (9) The .....period required for use inauguration for '.-RPD 94-1 shall be extended from one (1) year to three (3) years upon the effective date of this Agreement. C:\citymgr\sdiagr.wpd 14 C:\citymgr\sdiagr.wpd 15 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after this Agreement becomes effective 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. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Ordinance No. 59 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 default by City hereunder, diminish, impede, or abrogate the obligations of Developer hereunder or render this Agreement invalid or void. 10. Default by Developer. Each of the following events shall be deemed a material breach of Developer's obligations under this Agreement: (a) Developer practices, or attempts to practice, any fraud or deceit upon City. (b) Developer becomes insolvent or proceedings in bankruptcy are instituted by or against Developer, or Developer is adjudged bankrupt or insolvent by any court, or a receiver or trustee in bankruptcy or a receiver of the Property is appointed in any suit or proceeding brought by or against Developer, or Developer makes an assignment for the benefit of creditors, and during the pendency of aforementioned proceeding Developer fails to maintain t-we—qe (c) Developer willfully violates any orders or rulings of any regulatory body having jurisdiction over Developer relative to the Project, provided that Developer may contest any such orders or rulings by appropriate proceedings conducted in good faith, in which case no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer. C:\d tymgr\sdiagr.wpd 16 (d) Developer fails to make any payments required under this Agreement. (e) Developer materially breaches any of the other terms, conditions or requirements of the Agreement and the same is not corrected or remedied within the time set in a written notice of the violation from City to Developer, provided that if Developer cannot reasonably correct or remedy the breach within the time'set forth in such notice, Developer fails to commence to correct or remedy such violation within the time set forth in such notice and diligently effect such correction or remedy thereafter. 11. Mortgage Protection. Whenever City delivers any notice to Developer with respect to any default by Developer, City shall at the same time deliver to each holder of record of any deed of trust on the Property (the "Financier ") a copy of such notice, provided that the Financier has given prior written notice of its name and address to City and the notice makes specific reference to this section. 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 default within fifteen (15) days after the receipt of the notice from City. If such default 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 delivers written 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. The City shall not terminate this Agreement by reason of Developer's default 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 any owner of the Property, or any part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 12. Estoppel Certificate. Either party may, at any time and from time to time, deliver written notice to the other party 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 identify of each amendment, and (iii) the requesting party is not in default under this Agreement, or if in default, a description of each such default. The party receiving a request hereunder shall execute and return such certificate within thirty (30) days following the receipt thereof. City acknowledges that a certificate hereunder C: \Citymgr \sdiagr.wpd 17 may be relied upon by successors in interest to Developer and holders of record of deeds of trust on the Property. 13. Administration of Agreement. All decisions by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith are appealable by Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after Developer is notified 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. Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 14. Amendment or Termination by Mutual Consent. In accordance with the provisions of Ordinance No. 59 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 Developer. 15. Indemnification. 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, Developer's performance pursuant to this Agreement. 16. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 17. Term. This Agreement shall become effective on the date that the current owners of the Property agree to be bound by the terms of this Agreement or on the date that Developer era substitute r rsen —takes legal title to the Property, p y, which ever comes first, but in no event sooner than the date upon which the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. For purposes of this section, substitute person partnership, means Paul A. Bell' . a natural persen, er any alei-equi able interest. -- The Agreement shall remain in effect (I) for twenty years from its effective date or (ii) until Developer has completed the construction of the Project and has paid -the Prefftissery Nete —in mil, whichever of the two events occurs first. The expiration of this Agreement shall not affect any right or duty arising independently from any Project Approval that is approved by City concurrently with, or subsequent to, the adoption of the Enabling Ordinance. C: \citymgr \sdiagr.upd 18 Upon the expiration of this Agreement, City and Developer agree to cooperate and execute any document reasonably requested by the other party to remove this Agreement from the public records as to the Property, or any portion thereof, to the extent permitted by applicable laws. 18. Notices. All notices given pursuant to this Agreement shall be in writing and shall be effective 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 party at the address indicated below: To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: Bellinger Pevel�pymtent 2829 Tewnsgate Read, SuAte .. Westlake Village, GA ... Attn. Paul A. Bellinger Either party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 19. Entire Agreement. This Agreement 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. 20. 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. 21. 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. 22. Relationship of the Parties. The parties acknowledge that, in entering into and performing under this Agreement, each is acting as an independent entity and not as an C: \citymgr \sdiagr.wpd 19 agent of the other in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint venturers or any other association of any kind or nature between City and Developer. 23. Constructive Notice and Acceptance. Every person who, now or hereafter, owns or acquires any right, title or interest in or to any portion of the Property is, and shall be, conclusively deemed to have consented and agreed to every provision contained herein, whether or not any reference to this Agreement is contained in the instrument by which such person acquired an interest in the Property. 24. 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. 25. Recordation Agreement. This Agreement and any amendment or termination thereof shall be recorded in the official records of the County of Ventura by the City Clerk of City within the period required by Ordinance 59 of City or any successor thereof then in effect. 26. Cooperation Between the Parties. Each party 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. 27. 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 the interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals, the provision of this Agreement shall prevail. Should any provision of the Promissory Note be found to be in conflict with any provision of this Agreement, the provision of the Promissory Note shall prevail. 28. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the parties, and it shall not be construed against either party on the ground that the party prepared the Agreement or caused it to be prepared. 29. 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. C:\6tymgr\sdiagr.wpd 20 30. 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. 31. Counterparts. This Agreement has been executed in duplicate counterparts, each of which shall be deemed an original, but both of which constitute one and the same instrument. IN WITNESS WHEREOF, the parties have each executed this Agreement of the date first written above. CITY OF MOORPARK By: Paul W. Lawrason Jr. Mayor ATTEST Lillian M. Hare City Clerk By: Paul A. B634--j- lleezl3rariE Faunkrj �i �� S a ramp, hereby agrees this day ofd, 1996 to be bound by and perform under the terms and provisions of this Agreement as if it were a party hereto. C:\6tymgr\sdiagr.wpd 21 By: President C: \Citymgr \sdiagr.wpd 22 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY C: \citymgr \sdiagr.wpd 23 EXHIBIT C PROMISSORY NOTE SECURED BY DEED OF TRUST California , 1996 For value received, INCORPORATED a California corporation ..,........r.... p ( "Developer'�� "'promses'to pay to the CITY OF MOORPARK ( "City "), or to order, at 799 Moorpark Avenue, Moorpark, California, or at such other place as City may from time to time designate by written notice to Developer, the principal amounts specified, in Section 2 below. Said amounts shall be due and payable in lawful tender of the United States of America without setoff, deduction or counterclaim. 1. Development Agreement. This Promissory Note (the "Note ") is issued pursuant to, and subject to, that certain Development Agreement dated April! , 1996, by and between City and Developer (the "Agreement "). The defined terms in this Note shall have the same meanings as in the Agreement. Any default under the Agreement shall constitute a default under this Note. 2. A. _ Developer shall make an annual payment to City of T-we ....:. .»: <.::.:;;.;:.::.>:;.::.;:.::; •�.:;.::: .::.;:.;..;.:. .:.:;.::.:>:.:::.;:.>:.:;.;�:;: .:.� :..:.:;.::.>��.;:. �.;:::.;:.;;�::.;� :: .:: _. _ _-_. _ - \ T -' v v , v v v . v v � ::::::<M?�:!r:Y.�ir,.,i:i,:zrx: tC u�a.... each � ...�,,:::::.; year for.... -. -- teen :.: consecutive years commencing on them - fsi anniversary o B. Developer - .. . C. Developer shall pay to Citv FIVE ;1T1Nnpg.n EPZZC)JJQaJTM T-I^T T TT) D. Developer shall have the right to prepay all or part of the amounts specified in Paragraphs 2, A, B, and C hereof at any time or times. if Develeper elei: 1 to-� � me e C: \citymgr \sdiagr.upd 24 3. Acceleration on Default. If any part of any principal amount under this Note is not paid when due and remains unpaid after a date specified by a notice from City to Developer, or if any breach or default under this Note, the Agreement or the Deed of Trust described in Paragraph 6 hereof is not cured by a date specified in a notice to Developer from City, the entirety of the principal amounts outstanding shall at once become due and payable at the option of City. The date specified in any notice from City to Developer shall not be less than ten (10) days from the date such notice is deemed delivered pursuant to the provisions of Paragraph 11 hereof. City may exercise this option to accelerate during any breach or default by Developer regardless of any prior forbearance. Failure to exercise, or delay in exercising, this option shall not constitute a waiver of the right to exercise it for the breach or default or in the event of any subsequent breach or default. 4. Late Payment Charges and Default Rate. A. Developer acknowledges that late payments shall cause damage to City. Developer agrees to pay, for each payment not received by City within five (5) days after payment is due, a late charge of Two Hundred and Fifty Dollars and No Cents ($250.00). Acceptance of any late charge by City shall not constitute a waiver of the default with respect to the overdue amount, and it shall not prevent City from pursuing any of the its other rights and remedies. B. In the event Developer fails to make any payment when due, interest shall accrue on said payment from the payment due date at the rate of ten percent (10 %) per annum. C. In the event that any usury limitations apply to any payment pursuant to this Paragraph, the specified payment shall be reduced to the maximum amount permitted by law. 5. Cost of Collection. Developer agrees to pay to City the following costs, expenses and attorneys' fees paid or incurred by City, or awarded by a court of competent jurisdiction: (I) the reasonable costs and expenses of collection or enforcement of, and reasonable attorneys' fees paid or incurred in connection with the collection or enforcement of, this Note or any part of it, whether or not suit is filed and (ii) costs of suit and reasonable attorneys' fees in an action to enforce payment of this Note or any part of it. 6. Security for Note. The indebtedness evidenced by this Note is secured by a certain Deed of Trust with Assignment of Rents of even date herewith (the "Deed of Trust "). C: \citymgr \sdiagr.wpd 25 7. Forbearance Not a Waiver. No delay or omission on the part of City in exercising any rights under this Note, the Deed of Trust or the Agreement on breach or default by Developer shall operate as a waiver of such right or any other right under this Note, the Deed of Trust or the Agreement for the same breach or default or for any other breach or default. 8. Assignment by City. City shall have the right to sell, assign or otherwise transfer, in whole or in part, this Note, the Deed of Trust, and any other instrument evidencing or securing the indebtedness of this Note without the consent of Developer. 9. No Assignment By Developer. Developer shall not have the right to assign this Note, in whole or in part, without the prior written consent of City. 10. Time is of the Essence. Time is of the essence for each and every obligation under this Note. 11. Notice. Any notice to be given pursuant to this Note shall be in writing, and all such notices, payments and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the party for whom intended as follows: City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attn: City Manager Notices, payments and other documents shall be deemed received upon receipt by personal service or upon the second (2nd) day after deposit in the United States mail. Either party may, from time to \city%r \sdiagr.wpd 26 time, by written notice to the other, designate a different address which shall be substituted for the one above specified. CITY OF MOORPARK By: Paul W. Lawrason Jr. Mayor ATTEST Lillian E. Hare City Clerk . ......... ::................... .........:.. SPECIAL T1E iICE Nrl am C: \citymgr \sdiagr.wpd 27 STATE OF CALIFORNIA SS. COUNTY OF VENTURA On before me personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose names(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his /her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature C:\dtymgr\sdiagr.wpd 2 8 (Seal)