HomeMy WebLinkAboutAGENDA REPORT 1995 0802 CC REG ITEM 11JAGENDA REPORT
CITY OF MOORPARK
TO: The Honorable City Council ff
FROM: Steven Kueny, City Manager �Id
DATE: July 28, 1995 (CC Meeting of August 2, 1995)
SUBJECT:
BACKGROUND
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ITEM A
MOORPARK, CALIFCIMN' ; -,
Consider Request by G & S Partnership Concerning
Declaration of Restrictions and Agreement (IPD 93 -1)
Condition No. 16 of IPD 93 -1 requires G & S Partnership (G & S)
to plant California pepper trees and provide irrigation along the
slope within the Caltrans right -of -way of New Los Angeles Avenue.
G & S is responsible for maintenance until the maintenance
responsibility is transferred to Caltrans. To fulfill this
requirement, G & S must enter into a Caltrans Maintenance
Agreement and Permit (Permit). Caltrans also requires the City
to be a signator of the Permit. The Declaration of Restrictions
and Agreement (Agreement) clarifies the City's role relative to
the Permit and is intended to insure that G & S performs the
obligations required by Condition No. 16 and the Permit, provides
indemnification of the City, and provides remedies to the City in
the event of non - performance by G & S.
DISCUSSION
With one exception, G & S and City staff are in concurrence with
the language of the Agreement. In a letter dated July 18, 1995,
to the City Manager and copied to City Council, G & S has
requested that the City Council consider this matter of
disagreement. The item of disagreement concerns language that
requires applicable provisions of the agreement to be
incorporated as part of Condition No. 16.
As explained in the City Attorney's May 30, 1995 letter, the City
may need the ability to use its land use regulatory powers to
enforce the provisions of the Agreement. This may be needed
because the City may not be able to enforce the provisions of the
Agreement because it wouldn't be the buyer or seller of the Land.
As the City Council may recall, the City Attorney made a similar
recommendation relative to CPD 92 -1 (Atassi) with regard to
Condition No. 65 of that CPD. Condition No. 65 dealt with a
deferred payment obligation representing Atassi's pro -rata share
of the cost of certain intersection improvements. The Council
approved a change to Condition No. 65 requiring that "the
obligation created by the deferred payment shall accrue to
anybody that exercises the benefit of CPD Permit 92 -1, and the
permit may be revoked if the obligation is not satisfied as
required by this condition."
STAFF RECObMNDATION
Approve agreement as recommended by staff.
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Attachments:
City Attorney May 30, 1995 letter
Condition No. 16 of IPD 93 -1
c: \docs \wpwin \ccagenda \g &s8.295
LAW OFFICES
BURKE, WILLIAMS & SORENSEN
VENTURA COUNTY OFFICE 611 WEST SIXTH STREET, SUITE 2500
2310 PONDEROSA DRIVE
SUITE 1 LOS ANGELES, CALIFORNIA 90017
CAMARILLO, CALIFORNIA 93010 (213) 236-0600
1605) 967 -3468
ORANGE COUNTY OFFICE TELECOPIER: (213) 236 -2700
3200 BRISTOL STREET
SUITE 640
COSTA MESA, CALIFORNIA 92626
(714) 545 -5559
By Facsimile and Mail
May 30, 1995
Steven Kueny
City Manager
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
BURKE, WILLIAMS, SORENSEN S. GAAR
LIGHTON PLAZA
7300 COLLEGE BOULEVARD
SUITE 220
OVERLAND PARK, KANSAS 66210
(9131339-6200
WRITERS DIRECT DIAL
213 - 236 -2721
OUR FILE NO. 01359 -001
~ RECEIVED
MAY 3 1 1995
City of Moorpark
Re: Declaration of Restrictions and
Agreement with G &S Partnership
Dear Steve:
By facsimile transmittal dated May 11, 1995, you have
requested review of the above - described document. My comments
are noted below.
1. 4th Recital
I assume that the referenced agreement is the one
between Caltrans, G &S and the City that you provided me on May
17, even though it is represented here as only being between the
City and Caltrans. Parenthetically, I note that I am returning
the Caltrans agreement to you under cover of this letter.
2. General Provisions
Restrictions restrict the use of land while covenants
are promises to undertake or refrain from undertaking specified
actions with respect to the land. I am not sure why the document
is, in part, entitled "Declaration of Restrictions ", particularly
since the reference in the last paragraph of this section is to
"covenants" rather than restrictions.
L.AX2:128639.1
Steven Kueny
May 30, 1995
Page 2
Regardless of whether the document is entitled a
declaration of "restrictions ", "covenants" or "conditions ",
covenants, conditions and restrictions are forms of private land
use regulation between a grantor and grantee. To my knowledge
the California courts have never addressed the issue of
enforceability when one of the parties (i.e. the City) was
neither the buyer or seller of the land. But even if the courts
were to rule favorably on that issue, restrictions, covenants and
conditions are only enforceable against successive owners, that
is run with the land, when they are contained in the grant deed.
(Civ. Code § 1468) In other words, it is not enough that this
document be recorded.
As part of this document, the City could require that
the Developer include the provisions thereof in the grant of the
Land, but of course that does not guarantee to the City that the
grant deed will so provide. And even if the grant deed so
provided, that does not guarantee to the City that the
"restrictions ", "covenants" or "conditions" will be enforceable
by the City against subsequent owners.
In the event of non - enforceability against subsequent
owners, the City may want to consider expanding Condition 16 of
IPD 93 -1 to include the essential provisions of the document. In
that way, the City could fall back on its land use regulatory
powers. The City may also want to consider requiring annexation
to an assessment district prior to the sale of the Land, so as to
avoid the entire issue of enforceability against subsequent
owners.
3. Liability Insurance
You may want to consider requiring that the insurance
companies have a minimum Best's Rating.
Endorsements should also be required relative to the
first and second categories of protection that are required to
offered by the policies.
4. Workers' Compensation Insurance
The reference throughout should be to "Developer and
Developer's agents. In Section V "agent" was defined to include
contractors and subcontractors, and there is no reason why the
LAX2:129639.1
Steven Kueny
May 30, 1995
Page 3
requirements of this section should be limited to subcontractors.
Furthermore, employees do not have the responsibility for taking
out and maintaining worker's compensation insurance; that is the
responsibility of Developer as employer.
5. Obligation to Repair as Instructed
I fail to understand why this section is limited to
landscaping that is in a "dangerous condition. I recommend that
the reimbursement requirement include a specific time period
within which the reimbursement must be made.
In order for the City to be assured of its ability to
annex the Rights of Way to an assessment district and assess all
costs to Developer, it is essential that Developer waive its
rights of protest herein.
If you have any questions regarding my comments, please
do not hesitate to contact me.
CJK
Enclosure
LAX2:128639.1
r truly ours,
CHER J. KANE
CITY TT EY, MOORPARK; and
BURKE, LLIAMS & SORENSEN
INDUSTRIAL
APPLICANT:
DATE:
PLANNED DEVELOPMENT
IPD 93 -1
G &S Partnership
9/7/93
be liable for the costs associated with the professional
investigation.
13. Prior to initial tenant occupancy and any subsequent change in
tenant occupancy, the owner of the subject building, or the
owner's representative shall apply for a zoning clearance from
the Community Development Department. Note: The Director of
Community Development, or his designee, shall have the
authority to conditionally approve or deny a Zoning Clearance
request for tenant occupancy consistent with the provisions in
the Zoning Ordinance. The cost of the Zoning. Clearance shall
be borne by the applicant for tenant occupancy.
14. If in the future, any use or uses are contemplated on the site
differing from that specified in the zoning clearance approved
for the occupancy, either the permittee, owner, or each
prospective tenant shall file a project description prior to
the initiation of the use. A review by the Director of
Community Development will be conducted to determine if the
proposed use is compatible with the M -1 Zone and the terms and
conditions of this permit. Said review will be conducted at
no charge and an approval letter sent, unless a minor or major
modification to the Planned Development is required, in which
case all applicable fees and procedures shall apply. All
future users are advised that due to the original user's
concept, the amount of available parking may severely restrict
the new. users I ability to fully utilize the entire square
footage. The amount of parking available will dictate what
percentage of the buildings may be used.
15. The permittee's acceptance of this permit and /or . commencement
of construction and/ or operations under this permit shall be
deemed to be. acceptance of all conditions of this permit.
16. The applicant shall plant at 20 feet on center a continuous
line of 15 gallon California Pepper trees in front of the
truck doors within the Cal Trans right -of -way along New Los
Angeles Avenue. The applicant shall also install an
irrigation system for the trees. The location of the trees
shall be determined by the Director of Community Development.
The applicant shall be responsible for maintenance of the
landscaping and irrigation systems until the maintenance
responsibility is transferred to Caltrans.
IPD93.1 / LLA93.8
Page -6-
Resolution No. 93-