HomeMy WebLinkAboutAGENDA REPORT 2001 0718 CC REG ITEM 11LMOORPARK CITY COUNCIL
AGENDA REPORT
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TO: The Honorable City Council
FROM: Steven Kueny, City Manager ve�
DATE: July 12, 2001 (CC Meeting of July 18, 2001)
SUBJECT: Settlement Agreement with West Pointe Homes, Inc.
Regarding Time Extension for Tentative Tract Map 4620
Tentative Tract Map 4620 was originally approved on January 9,
1991. Through a series of state mandated and city discretionary
time extensions consistent with the State Subdivision Map Act,
the Tentative Map approval has been extended until February 9,
2002.
As referenced in the recitals contained in the Settlement
Agreement, the City and West Pointe are avoiding a legal dispute
concerning any further time extension for the Tentative Map and
any City obligation to process the Final Map in phases. In
addition, West Pointe agrees to accept an additional condition of
the Map pertaining to improvements on Walnut Canyon Road.
STAFF RECOMMENDATION:
Approve the Settlement Agreement subject to final language
approval of the City Manager and City Attorney and authorize the
Mayor to execute it on behalf of the City.
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Attachment: Settlement Agreement
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SETTLEMENT AGREEMENT
This SETTLEMENT AGREEMENT ( "Agreement ") is made and entered into as
of the day of July, 2001, by and among the CITY OF MOORPARK, a general law
city ( "City "), on the one hand, and WEST POINTE HOMES, INC. a Nevada Corporation
( "West Pointe ") on the other hand, with reference to the following facts and
circumstances. City and West Pointe may hereinafter be referred to individually as
"Party" and collectively as "Parties."
RECITALS
1. West Pointe is in the process of satisfying the conditions of approval for Tentative
Tract Map 4620, which was originally approved on January 9, 1991. Absent additional
extensions, Tentative Tract Map 4620 will expire on February 9, 2002.
2. West Pointe intends to file with the City a final map application for a phase of
Tract 4620 within the next ninety (90) days (the "Phase 1 Map ").
3. The conditions of approval for Tract 4620 and the Moorpark Municipal Code
require West Pointe to construct, improve or finance the construction or improvement of
more than $125,000 of public improvements outside the property boundaries of the
tentative map, excluding improvement of public rights -of -way which abut the boundary
of the property to be subdivided.
4. Pursuant to Government Code section 66458, the City is obligated to process final
map applications within a very limited time frame, unless such time frame is waived.
5. Given the volume of development entitlements that City staff is currently
processing, City does not anticipate being able to process the Phase 1 Map within the
statutorily mandated time frames, absent a waiver by West Pointe.
6. By this Agreement, the Parties intend to avoid a legal dispute concerning the
City's obligations with respect to the processing of the Phase 1 Map, as well as clarify the
Parties' understanding of the effect filing of the Phase 1 Map will have on the expiration
date of Tentative Tract Map 4620.
IN CONSIDERATION of the foregoing and the provisions set forth herein, and for good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged,
the parties to this Agreement agree as follows:
PHASING OF FINAL MAP.
Pursuant to California Government Code section 66456. 1, the City of Moorpark
concurs in the filing of multiple final maps for Tract 4620.
July 10, 2001 draft
2. EXPIRATION OF TENTATIVE MAP.
Based upon the Recitals set forth herein, for purposes of Government Code
section 66452.6(a)(1), the City confirms that should West Pointe file the Phase 1 Map
prior to October 31, 2001, the approved Tentative Tract Map for Tract 4620 shall be valid
through February 9, 2005, 36 months after its present expiration date. For purposes of
this section, the Phase 1 Map shall be deemed filed upon delivery to the City Engineer
with payment of applicable fees.
3. WAIVER OF APPROVAL DEADLINES.
The City's determinations set forth herein are contingent upon a waiver by West
Pointe of any processing or approval deadlines set forth in State law, including, but not
limited to, Government Code Section 66458, or the Moorpark Municipal Code with
respect to the Phase 1 Map. West Pointe agrees and understands that City may not be
able to process the Phase 1 Map for several months, absent the hiring of additional staff
at West Pointe's cost for purposes of such processing. West Pointe further agrees and
understands that it shall be West Pointe's obligation to request and pay for expedited
processing of the Phase 1 Map, and absent such request and payment, City shall process
the Phase 1 Map in due course.
4. ADDITIONAL CONDITION FOR TRACT 4620.
Both parties agree to the addition of Condition No. 121 to those conditions
contained in City Council Resolution No. 91 -731 as follows:
Applicant shall post a bond or other appropriate surety for their proportionate share of
public street and drainage improvements to Walnut Canyon Road from Casey Road to the
north city limits as proposed by the Walnut Canyon Road Corridor Study. Applicant's
proportionate share shall also be defined to include frontage along Walnut Canyon Road
for a distance of 500± feet south of the southeasterly corner of the subject property as
shown on the Tentative Map for Tract 4620. The extent of the improvements and or the
amount and type of surety to be posted shall be determined by the City and posting of
said surety shall occur prior to approval of the first Final Map, and construction of
applicant's portion of the improvement shall occur prior to the occupancy of the first
residential unit in Tract No. 4620.
5. MUTUAL RELEASES.
West Pointe and City, and each of them, on behalf of themselves and their
successors and assigns, partners, members, beneficiaries, representatives, heirs,
executors, administrators, trustees, agents, attorneys -in -fact, and anyone claiming an
interest through or under such person, and on behalf of their predecessors and successors
in interest regarding the subject matter hereof, do by this instrument fully and forever
July 10, 2001 draft e 4) 02 2
remise, release and discharge (the "Release ') the other party and any parent, subsidiary,
division, affiliated or related companies, and each of their respective partners, officers,
directors, agents, employees, stockholders, beneficiaries, attorneys, representatives,
successors, assigns and heirs, from any and all sums of money, accounts, claims,
demands, contracts, actions, debts, controversies, agreements, liabilities, obligations,
damages and causes of action whatsoever, of whatever kind or nature, whether known or
unknown, fixed or contingent, or suspected or unsuspected by them which any of them
now owns, holds, has or claims to have, or at any time heretofore owned, held, had or
claimed to have against the others, including specifically but not exclusively and without
limiting the generality of the foregoing, any and all claims, damages, demands and causes
of action, known or unknown, suspected or unsuspected by reason of any matter or thing
alleged or referred to, or directly or indirectly or in any way connected with or arising out
of or which may hereafter be claimed to arise out of the matters covered by this
Agreement. Matters not specifically recited or contained within this Agreement are
expressly excluded herefrom. Further, this release shall not pertain to any fees required
to be paid by West Pointe in connection with the filing of the final map for Phase 1, nor
shall it pertain to any costs required to be incurred in connection with satisfaction of the
conditions of approval for Tract 4620 or compliance with the Moorpark Municipal Code.
6. WARRANTY OF AUTHORIZED SIGNATORIES.
Each of the signatories hereby warrants and represents that he, or she is competent
and authorized to execute this Agreement' on behalf of the party for whom he or she
purports to sign.
7. EXECUTION OF COUNTERPARTS.
The parties hereto agree that this Agreement may, for the convenience of the
parties, be executed in counterparts and that it is the intent of the parties that the copy
signed by a party will be fully enforceable against that party.
8. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, legal representatives,
parent, subsidiary, affiliated and related entities, officers, directors, principals, agents,
servants, employees, representatives, and all persons, firms, associations and/or
corporations connected with them, including without limitation, their insurers, sureties
and/or attorneys.
(b) Attorneys' Fees. In the event that any action, suit or other proceeding is instituted
to remedy, prevent or obtain relief from a breach of this Agreement, or arising out of
breach of this Agreement, or contesting the validity or enforceability of this Agreement,
the prevailing party shall be entitled to recover reasonable attorneys' fees and costs
incurred in such action, suit or other proceeding, including any and all appeals or
petitions therefrom.
July 10, 2001 draft 7
(c) Integrated Agreement. This Agreement is an integrated Agreement and
constitutes the entire understanding of the parties hereto with respect to the subject matter
hereof and supersedes any and all prior agreements, communications, representations, or
warranties, whether oral or written, by any party or any agent, officer, partner, employee,
or representative of any party.
(d) Amendments. This Agreement may not be modified, altered, amended, or
rescinded except by an instrument in writing, which is signed by all parties affected by
any such modification, alteration, amendment or rescission.
(e) Severability. Should any part, term or provision of this Agreement be declared or
determined by any court to be illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby and said illegal or invalid part, term or
provision shall be deemed not to be a part of this Agreement.
(f) Construction. This Agreement is the product of negotiation, drafting and
preparation by and among the parties hereto and their respective attorneys. The parties
hereto expressly acknowledge and agree that this Agreement shall not be deemed
prepared or drafted by one party or another and its attorneys, and will be construed
accordingly. Any rule of construction to the effect that ambiguities are to be resolved
against the drafting parties shall not apply in the interpretation of this Agreement.
(g) Good Faith Settlement. The parties hereto acknowledge and agree that the
settlement embodied in this Agreement is made in good faith.
(h) Notices. Unless specified elsewhere in this Agreement, all notices that are
required to be delivered under this Agreement in writing and personally delivered, or sent
by Federal Express, registered or certified mail, postage prepaid, or facsimile, addressed
as follows:
To City: City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: Steven
With a copy to: Burke, Williams, & Sorensen, LLP
611 West Sixth Street, Suite 2500
Los Angeles, California 90017 -3102
Attention: Joseph M. Montes, Esq.
To West Pointe: West Pointe Homes, Inc.
Attention:
Such addresses may be changed from time to time by the addressee by serving notice as
heretofore provided. Service of such notice or demand shall be deemed complete on the
July 10, 2001 draft C00274
date of actual delivery as shown by the addressee's registry or certification receipt or at
the expiration of the third day after the date of mailing (whether or not actually received
by the addressee), whichever is earlier in time.
(i) Governing Law. This Agreement is made and entered into in the State of
California and shall, in all respects, be interpreted, governed and enforced in accordance
with the laws of the State of California applicable to contracts entered into and fully to be
performed therein.
0) Further Assurances. Each Party hereto shall from and after the date hereof
execute, acknowledge and deliver such further instruments and perform such additional
acts as any other Party may reasonably request to effectuate the intent of this Agreement.
(k) Time of Essence. The Parties hereby acknowledge and agree that time is strictly
of the essence with respect to each and every term, condition, obligation and provision
hereof and that failure to timely perform any of the terms, conditions, obligations or
provisions hereof by either Party shall constitute a material breach of and a non - curable
(but waivable) default under this Agreement by the Party so failing to perform.
(1) Third Party Beneficiaries. No term or provision of this Agreement or the exhibits
hereto is intended to or shall be for the benefit of any person or entity not a party hereto,
and no such other person or entity shall have any right or cause of action hereunder.
(m) Assistance of Counsel. West Pointe and City each acknowledge that: (i) they
have been represented by independent counsel in connection with this Agreement; (ii)
they have executed this Agreement with the advice of such counsel; and (iii) this
Agreement is the result of negotiations between the parties hereto and the advice and
assistance of their respective counsel. Each of the Parties has equally participated in the
drafting and preparation of this Agreement, and it is the intention of the Parties that the
construction or interpretation of this Agreement shall be made without reference to the
party who drafted any portion or particular provision of this Agreement or the relative
size and or bargaining power of the Parties.
IN WITNESS WHEREOF, the undersigned each has executed this Agreement as of the
date first above written.
July 10, 2001 draft
CITY OF MOORPARK
By
Steven Kueny
Attest:
By
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July 10, 2001 draft
WEST POINTE HOMES INC.
By
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