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EXHIBIT 10.21
Development Agreement, dated August 28, 1996, between Registrant and the City of
Moorpark.
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New file 114.737
96-124171 Rec Fee .00
A.R. .00
Recording Requested By
and When Recorded Return To: Recorded
Official Records
CITY CLERK County of
CITY OF MOORPARK Ventura
799 Moorpark Avenue Richard D. Dean
Moorpark, California 93021 Recorder
8:02am 10-Sep-96 MOOR CQ 36
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
Section 6103
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*photocopy of document
also located in
Recorded Doc file #929
ref #351
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
SPECIAL DEVICES, INCORPORATED
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE SECTION 63868.5
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DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is made this 28th day of
August, 1996, by and between the CITY OF MOORPARK, a municipal corporation,
("City") and SPECIAL DEVICES, INCORPORATED, a Delaware corporation,
("Developer"). In 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. seq. 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, and contiguous to, the City of Moorpark, as more specifically
described by the legal description set forth in Exhibit A-1, and owns in fee
simple certain real property in the City of Moorpark, as more specifically
described by the legal description set forth in Exhibit A-2, collectively "the
Property". The exhibits are attached hereto and incorporated herein by this
reference.
C. Upon application of Developer, City has approved General Plan
Amendment No. 95-1, Zone Change No. 95-3 and Vesting Tentative Tract Map (VTTM)
No. 5004 for the Property (collectively "the Property Approvals"). In addition
and upon application of Developer, City has approved Industrial Planned
Development Permit ("IPD") No. 95-2 for a portion of the Property. The
approval of the Property Approvals and IPD No. 95-2 is subject to a mitigation
monitoring program that was approved by City on the date first above written
("the Mitigation Monitoring Program"). Implementation of IPD No. 95-2 is
referred to herein as the Project. Collectively, the Property Approvals, IPD
No. 95-2, and the Mitigation Monitoring Program are referred to as "the
Entitlements".
D. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in accordance with this
Agreement and the Entitlements. In consideration thereof, City agrees to limit
the future exercise of certain of its governmental and proprietary powers to
the extent specified in this Agreement.
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E. By this Agreement, Developer desires to obtain the binding
agreement of City to permit the development of the Property, if developed at
all, in accordance with this Agreement and the Entitlements. 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 Entitlements 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. 95-1.
G. On August 12, 1996, the Planning Commission of City held a
duly noticed public bearing on this Agreement and recommended approval of the
same.
H. On August 21, the City Council of City ("the City Council")
held a duly noticed public hearing on this Agreement, and by Ordinance No. 220
("the Enabling Ordinance") approved the same.
I. City and Developer acknowledge and agree that there may be
conflicts and inconsistencies between the provisions of this Agreement and the
provisions of the Property Approvals or IPD No. 95-2 and that in the event of
any such conflict or inconsistency it is the intention and agreement of City
and Developer that the provisions of this Agreement shall control and shall
take precedence over and supersede the provisions of the Property Approvals and
IPD No. 95-2 to the extent of such conflict or inconsistency.
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 that portion of Lot 3 of VTTM No. 5004 that is
subject to IPD No. 95-2 shall be limited to those set forth in said
IPD. The permitted and conditionally permitted uses of the remainder
of Lot 3 and the Project if IDP-95-2 is not use inaugurated within
three (3) years of Project approval, shall be those permitted and
conditionally permitted uses
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Subject to application and processing of an Industrial Planned
Development Permit as follows:
(1) Manufacturing industries which are completely contained within a
wholly enclosed building.
(1)(a) Apparel and related products
(1)(b) Drugs, pharmaceuticals, perfumes, cosmetics and the like
(1)(c) Electrical and electronic machinery, equipment and supplies
including batteries, household appliances, and transmission
and distribution equipment, and industrial apparatus
(1)(d) Food and related products including bakery products but
excluding alcoholic beverages, sugar refining and slaughtering
(1)(e) Furniture and related fixtures
(1)(f) Instruments for measuring, analyzing and controlling
(1)(g) Jewelry, silverware and plated ware
(1)(h) Leather and leather products including tanning, curing and
finishing of hides and skins
(1)(I) Lumber and wood products and processes including cabinet work,
plywood, particleboard and veneer manufacture; and wood
preserving
(1)(j) Machinery, including office, computing and Accounting machines
(1)(k) Metal products, fabricated
(1)(1) Machine shops, plating, polishing, anodizing, engraving and
related operations
(1)(m) Musical instruments, including pianos and organs
(1)(n) Pens, pencils and other office and artists materials
(1)(o) Personal goods
(1)(p) Photographic, medical and optical goods, and watches and
clocks
(1)(g) Printing, publishing and related industries
(1)(r) Rubber and plastics products including tire retreading and
recapping
(1)(s) Stone, clay and glass products
(1)(t) Products fabricated from cement, concrete and plaster
(1)(u) Glass and glassware, pressed and blown, including flat glass
and glass products, made of purchased glass
(1)(v) Toys and amusement, sporting and athletic goods
(1)(w) Transportation equipment, motorcycles, bicycles and related
parts
(2) Offices: business, professional and administrative, except health and
veterinary
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(3) Lumber and building materials sales yards
The permitted and conditionally Permitted uses of the remainder of the
Property shall be limited to those that are allowed by the
conservation easement described in subsection (C) of Section 6 hereof
for Lot A and by subsection (k) of Section 6 hereof for Lot 1 and
Lot 2.
(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 Section 5 hereof.
(c) Reservations and Dedications. All reservations and
dedications of land for public purposes that are applicable to the
Property are set forth in (I) VTTM No. 5004 and (ii) Section 6 hereof.
(d) Modification and Extension of IPD No. 95-2.
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 IPD No. 95-2. The approval or conditional approval of any 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 minor modification, a
finding is made that the modification is consistent with this
Agreement.
It is understood by the parties that IPD No. 95-2 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 time extension before IPD No. 95-2 expires or for a new
permit after IPD No. 95-2 has expired.
4. Intentionally Deleted.
5. Vesting of Development Rights.
(a) 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 (" the Building
Codes") most recently adopted by City and in effect at the time a plan check or
permit is required.
(b) The portion of the Property that is subject to IPD
No. 95-2 shall be developed in accordance therewith and with VTTM
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No. 5004, the Mitigation monitoring Program and this Agreement. Any item not
otherwise addressed in said permit, map or program or this Agreement shall be
governed by the applicable provisions of the Moorpark Municipal Code or other
City ordinance, rule, regulation, or policy as most 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, IPD No. 95-2
and any time extension of VTTM No. 5004 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 or extension
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. 97, 99 and
100 of VTTM No. 5004);
Master Drainage and Flood Control Improvement Plan ("FCIP")
(Condition No. 104 of VTTM No. 5004); and
Bank Protection Plan ("BPP") (Condition No. 105 of VTTM No.
5004 and Condition No. 107 of IPD No. 95-2).
(c) All developable portions of the Property not subject
to IPD No. 95-2 shall be developed in accordance with VTTM No. 5004, the
Mitigation Monitoring Program, this Agreement and the applicable provisions of
the Moorpark Municipal Code or other city ordinance, rule, regulation, or
policy as most recently adopted by City and in effect at the time that
Developer's submittal is received by City. This subsection does not limit the
provisions of subsection (a) of Section 3 relative to the permitted and
conditionally permitted uses of the Property.
6. Developer Agreements
(a) The terms and conditions for the payments required by
subdivisions (l) and (m) of this Section shall be those contained in a
promissory note in the form of Exhibit B ("the Promissory Note"), which shall
be secured by a deed of trust and rider to deed of trust in the form of Exhibit
C ("the Deed of Trust") , both of which are attached to this Agreement and by
this reference are incorporated herein. Developer shall execute the Promissory
Note and the 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.
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Developer acknowledges that City may, at its Option, record a
request for notice under Civil Code Section 2924b in accordance with the
provisions thereof.
(b) Developer shall grant, in a form acceptable to City,
a conservation easement to retain Lot A of VTTM No. 5004 in a predominantly
open space condition consistent with Civil Code Section 815 et seq. except for
the following purposes: temporary construction (including temporary pumping
needed for dewatering as part of any approved grading operations for VTTM No.
5004 and IPD No. 95-2), landscape maintenance of manufactured slope areas,
vegetation clearance within two hundred (200) feet of any structure for fire
hazard reduction, revegetation and biological habitat enhancement required by
City consistent with the Mitigation Monitoring Program, drainage conveyance,
and emergency access from Lot 3 of VTTM No. 5004 to State Route ("SR") 23/New
Los Angeles Avenue entrance/exit ramps and roads at the sole discretion of the
City Council. No excavation, drilling, extraction, pumping (excluding such
pumping as may be needed for dewatering as part of approved grading
operations), mining, or similar activity shall be allowed in any portion of the
Property zoned Open Space. The limitations and exclusions described in this
subsection shall be included in the conservation easement. The foregoing does
not restrict the extraction of subsurface mineral resources by drilling from
off the Property so long as the drilling apparatus and equipment are screened
from view from all points within the City. Further, if the drilling site is
not within the City, Developer agrees that before proceeding with any drilling
it shall secure a use permit from the City which may include conditions
ordinarily placed upon drilling operations. Further, noise impacts from the
drilling shall meet the same noise standards as placed on IPD 95-2 and there
shall be no visible evidence or impacts on the ground surface of Lot A.
The conservation easement shall be recorded concurrently with
the recordation of the final subdivision map for VTTM No. 5004, execution of
the early grading agreement by the City Manager, or recordation of this
Agreement, whichever occurs first.
(c) On or before the effective date of this Agreement,
Developer shall pay all outstanding City processing and environmental impact
report costs related to VTTM No. 5004, IPD No. 95-2, GPA 95-1, and Zone Change
No. 95-3 and for preparation of this Agreement.
(d) Developer shall diligently process, at its sole cost
and expense, an application for annexation of the approximate 56.84 acres of
Lot A of VTTM No. 5004, which acreage is currently not in the City, to the
City, so that a LAFCO decision is rendered prior to October 1, 1997. The
completed application shall be submitted to City and LAFCO within six (6)
months after approval of this Agreement.
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(e) Developer shall make an irrevocable offer of
dedication to City for public street purposes of that portion of Lot 3 of VTTM
No. 5004 containing the private road prior to approval of the final map for
VTTM No. 5004. Said private road shall be built to City standards for an
industrial collector street, except that the width of the street and the
sidewalk requirements shall conform to the requirements of the conditions of
approval of VTTM No. 5004 and IPD No. 95-2. Concurrently with the
aforementioned offer of dedication, Developer shall make an irrevocable offer
of dedication to City of (I) the area between the right-of-way of the private
road and the sight distance lines at the offramp intersection and (ii) slope
easements for road maintenance purposes along the private road where the top of
cut plus 5 feet or the toe of fill plus 5 feet is beyond the area offered for
dedication of right-of-way for public street purposes. Said slope easements
shall include the area covered by the cut slope plus 5 feet and fill slope plus
5 feet.
(f) Developer shall annex all of the property within VTTM
No. 5004 that is within the City to Ventura County Waterworks District No. 1
("the District") prior to occupancy of the first building within the Project or
approval of the final map for VTTM No. 5004, whichever occurs first. Developer
shall annex the approximate 56.84 acres of Lot A of VTTM No. 5004 that is not
within the City to the District only if such annexation occurs concurrently
with the annexation of said property to the City. In the event that LAFCO
denies annexation of the approximate 56.84 acres to the City, Developer shall
withdraw its consent to the annexation of said acres to the District and shall
take all other actions reasonable necessary to prevent the annexation to the
District.
(g) Developer agrees to not oppose creation of a
redevelopment project area (as defined by applicable State law) encompassing
any part of the Property provided that the project area is consistent with the
rights of Developer under this Agreement.
(h) Developer agrees to dedicate Lot 4 and Lot D, as
described in Condition No. 16 of VTTM No. 5004, in fee simple interest to City
concurrently with the recordation of the final map for VTTM Map No. 5004.
These lots are to be used for public benefit as determined by City in it's
sole discretion.
(i) Developer agrees not to request any concession,
waiver, modification or reduction of any fee, regulation, requirement, policy
or standard condition for development of Lots 1 and 2 of VTTM No. 5004, and
further agrees to pay all fees imposed by City for future buildings, so long as
said fees are also imposed in a similar manner on similar projects.
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(j) Developer agrees that the modifications to Caltrans
rights-of-way adjacent to the Property, including but not limited to
reconfiguration of certain freeway entrance/exit ramps (SR 23 interchanges) and
signalization of SR 23 interchanges with New Los Angeles Avenue, shall be
completed within twelve (12) months of the first occupancy of a building on the
Property and that the bid award for construction shall occur prior to first
occupancy.
(k) Developer agrees that the maximum building square
footage for Lot 1 of VTTM No. 5004 shall not exceed 132,183 and for Lot 2 of
VTTM No. 5004 shall not exceed 37,200, and further agrees that the permitted
and conditionally permitted uses of Lots 1 and 2 shall be limited to (i)
shopping centers, (ii) hotels and motels, (iii) bars, taverns and night clubs
but only in conjunction with a hotel or motel use, (iv) conference centers and
convention centers, (v) hospitals, (vi) retail pharmacies for prescription
pharmaceutical only, (vii) restaurants, cafes and cafeterias, (viii) retail
trades, only within a building and (ix) motor vehicle, mobile home,
recreational vehicle and boat dealers and for Lot 2 only, automobile service
station including a mini mart.
(1) Developer agrees to pay City in accordance with the
provisions of this subsection if, for any reason, Developer does not employ the
number of full-time employees required by this subsection at the Project
facilities described in IPD No. 95-2.
The number of full-time employees employed at the Project
facilities on the date of initial occupancy is hereinafter referred to as the
Initial Number. Initial occupancy shall mean the last day of the month in
which the first certificate of occupancy for the Project facilities is issued
plus sixty (60) calendar days. As of the first anniversary of the initial
occupancy, the number of full-time employees employed at the Project facilities
shall be not less than the Initial Number plus the First Year Number. The
"First Year Number" shall mean the Initial Number plus seventy-five, provided
that if the Initial Number is reduced during the first year by the attrition of
employees who were employed full-time at the Project facilities at initial
occupancy ("original employees) and their positions are refilled by the hiring
of new full-time employees prior to the first anniversary of the Project
facilities ("new employees"), the 75 shall be reduced by the number of new
employees. (e.g., if there were 490 full-time employees at initial occupancy
and 30 new full-time employees were hired prior to the first anniversary of the
Project facilities to replace 30 of the original full-time employees, the First
Year Number is 490 plus 75 minus 30 for a total of 535 full-time employees.)
As of the second anniversary of the initial occupancy, the number of full-time
employees employed at the Project facilities shall be not less than the First
Year Number plus 75 ("the Second Year Number"). As of the third anniversary of
the initial occupancy, the number of full-time employees employed at the Project
facilities shall be not less than the First Year Number plus 150 ("the Third
Year Number").
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Each of the three (3) years that the minimum number of full-time employees
specified above are not employed at the Project facilities, Developer shall pay
City the sum of Twenty-Five Thousand Dollars ($25,000.00) within sixty (60)
days after the applicable anniversary date of the Project facilities.
In the event that the Initial Number is less than 490, the
Third Year Number shall be increased by the difference between the Initial
Number and 490 ("the Additional Number") up to a cap of 100. (E.g. if the
Initial Number is 380 then using the example from above the First Year Number
is 425 (380 plus 75 minus 30) and so the Third Year Number of 575 (425 plus
150) shall be increased by the Additional Number of 100 for a total of 675
full-time employees.) within sixty (60) days after the third anniversary of the
Project facilities, Developer shall pay City Three Hundred Thirty Three Dollars
($333) for each of the Additional Number of full-time employees that are not
employed at the Project facilities as of the third anniversary thereof. (E.g.,
using the example from above, Developer shall pay City $33,300 ($333 times
100.)
Upon City's request, Developer shall provide City with access,
during normal business hours and at the Project facilities, to payroll and
related records necessary to determine if Developer is in compliance with the
full-time employee requirements of this subsection and subsection (m) of this
Section.
In the event one or more payments are made by Developer
pursuant to subsection (m) of this Section, then the provisions of this
subsection shall not apply. Developer shall not be in material breach of this
subsection unless it fails to make timely payment of any payment due pursuant
to this subsection.
(m) Developer agrees that if, for any reason, it does not
build the Project described in IPD No. 95-2 and any City approved minor
modification thereto and relocate the Los Angeles County operations of Special
Devices, Incorporated to the Project facilities within three (3) years after
the effective date of this Agreement, Developer shall pay City the sum of Four
Hundred Ninety-Two Thousand, Three Hundred and Fifty-One Dollars ($492,351.00)
plus Seventy-Five Thousand Dollars ($75,000.00) per year for four (4)
consecutive years.
The $492,351.00 shall be payable in the amounts and at the times as
follows:
(1) At any time any part of Lot 1 or Lot 2 of VTTM No.
5004 is sold or leased to a third party (except for month to month
leases), Developer shall pay City $246,175.00, Payment is due upon
close of escrow of the sale or upon execution of the lease or the
third (3rd) anniversary of the effective date of this Agreement,
whichever is later.
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(2) At any time Lot 3 of VTTX NO. 5004 is sold or leased
to a third party (except for month to month leases) and No. 1, above,
has occurred, Developer shall pay City $246,176.00; however, if No. 1,
above, has not occurred or if No. 1 above has occurred prior to the
third (3rd) anniversary of the effective date of this Agreement, then
Developer shall pay City $492,351.00. Payment is due upon close of
escrow of the sale or upon execution of the lease.
(3) At any time a final map for any subsequent
subdivision of Lot 3 of VTTM No. 5004 is approved and No. 1, above,
has occurred, Developer shall pay City $246,176.00; however, if No. 1,
above, has not occurred then Developer shall pay City $492,351.00.
Payment is due prior to the recordation of said final map.
(4) On the tenth (10th) anniversary of the effective date
of this Agreement, Developer shall pay City any portion of the
$492,351.00 not previously paid to City pursuant to Nos. 1, 2 and 3
above.
The four (4) $75,000.00 payments totaling $300,000.00 shall be
paid beginning on the fourth (4) anniversary of the effective date of this
Agreement. In the event Developer relocates to the Project facilities after
the third anniversary of the effective date of this Agreement, no further
payment of the aforementioned Three Hundred Thousand Dollars ($300,000.00)
shall be due and owing, except that the annual amount that would otherwise have
been due and payable on the next succeeding anniversary date shall be prorated
as of the date of initial occupancy of the Project facilities and shall be paid
to City on the date of initial occupancy. (E.g., if such relocation occurs
three (3) months after the fourth anniversary, then Developer would have paid
Seventy Five Thousand Dollars ($75,000.00) on the fourth anniversary and would
pay Eighteen Thousand Seven Hundred Fifty Dollars ($18,750.00) on the date of
initial occupancy. The remaining Two Hundred Six Thousand, Two Hundred and
Fifty Dollars ($206,250.00) would not be owed by Developer.)
Developer shall not be in material breach of this subsection
unless it fails to make timely payment of any payment due pursuant to this
subsection.
(n) Developer agrees to pay for City costs at the
applicable rates then in effect for review and plan check monitoring and
inspection of work performed by consultants retained by Developer and City
pursuant to subsection (p) of Section 7 hereof.
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7. City Agreements.
(a) The Property shall be exempt from the provisions of
Chapter 17.38 (Hillside Management) of the Moorpark Municipal Code.
(b) The Property 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. The process shall generally follow Government Code
Section 66457 et seq. 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) City shall use its best efforts to process plan
checking and early grading agreement 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 map for VTTM No. 5004. Said early
grading agreement shall be consistent with the conditions of the Entitlements
and contingent on City Engineer and Director of Community Development
acceptance of a Performance Bond in a form and amount satisfactory to them to
guarantee (i) implementation of the erosion control plan and completion of the
rough grading, (ii) construction of the private street and secondary access and
all related improvements including landscaping, (iii) construction of SR 23
interchanges with New Los Angeles Avenue improvements, including signalization,
(iv) construction of water line and sewer line extensions, (v) construction of
all required drainage improvements and (vi) implementation and maintenance of
habitat restoration as required by the mitigation Monitoring Program. In the
event that Developer fails to comply with any provision of the early grading
agreement, the City Council may by resolution declare the surety forfeited;
provided, however, the City Council shall not declare any such forfeiture,
unless the City Manager has given Developer ten (10) days prior written notice
of such failure and Developer has failed to cure the failure within the ten day
period if the failure is capable of cure within such ten day period or has
failed to commence the cure within the ten day period and diligently prosecute
the same to completion if the failure is not capable of cure with such ten day
period.
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(f) The fees for the Los Angeles Avenue Area of
Contribution ("the AOC fees") for the Project are set at One Hundred Thirty one
Thousand Nine Hundred and Twelve Dollars ($131,912.00) (8.5 acres at $15,519,00
per acre) for up to One Hundred Thirty Two Thousand (132,000) square feet of
building. The Project AOC fees shall not be required to be paid by Developer
until the time of issuance of a zone clearance for the first building permit
for the Project or approval of the final map for VTTM No. 5004, whichever
occurs first. For any other development of the developable portions of the
Property, the AOC fees shall be the dollar amount in effect at the time of
issuance of a zone clearance for the first building permit for the development
or approval of the final map for any subdivision of the Property subsequent to
the recordation of the final map for VTTM No. 5004, whichever occurs first.
(g) The Citywide Traffic Mitigation Fee shall not be
required to be paid by Developer until the time of issuance of a zone clearance
for the first building permit for each lot within the boundaries of the
Property. The fee is fifty cents ($.50) per square foot of building. The fee
shall be adjusted annually (commencing one year after approval of VTTM No.
5004) 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.
(h) Except as otherwise provided in this Agreement, no
fees, other than fees for plan checking, permits, processing and other services
controlled by City, shall be required to be paid by Developer until the time of
issuance of a zone clearance for the first building permit for each lot within
the boundaries of the Property, unless the fee is otherwise due at a later
time.
(i) Upon the effective date of this Agreement, the period
required for use inauguration of IPD, No. 95-2 shall be extended from one (1)
year to three (3) years.
(j) City agrees to accept Lots 4 and D as satisfaction of
the requirements imposed by Condition No. 61 of VTTM No. 5004 and Condition No.
88 of IPD 95-2.
(k) The Project shall be exempt from the Art in Public
Places fee.
(1) The Property shall be exempt from the landscape fee
of five cents ($.05) per square foot for the Property given the large
percentage of the site retained in natural open space.
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(m) City agrees that the contribution requirements of
Condition No. 127 of VTTM No. 5004 shall be satisfied upon completion of
installation of the two traffic signals at the SR 23/New Los Angeles
interchange to the satisfaction of City.
(n) City shall not require Developer to remove noxious
plants from the Arroyo Simi.
(o) City agrees that, in implementation of Condition No.
26 of VTTM No. 5004, the City Engineer and Director of Community Development
may jointly approve elevation changes, not to exceed five (5) feet, for the
purpose of providing contour grading of the ridgeline.
(p) City agrees that, in implementation of Condition No.
25 of VTTM No. 5004 and Condition 37 of IPD No. 95-2 (Environmental Quality
Assurance Program), VTTM Condition 47 and IPD Condition 77 (Habitat Restoration
Plan), VTTM Condition 48 and IPD Condition 78 (Oak Woodland Restoration and
Reforestation Plan), VTTM Condition 56 and IPD Condition 83 (Mapping and
preservation of two stands of Lyon's Pentachaeta), VTTM Conditions 62 and 63
and IPD Conditions 89 and 90 (Cultural Resource Monitoring Program), VTTM
Condition 64 and IPD Condition 91 (Paleontological Mitigation Plan), VTTM
Condition 104 (Master Drainage and Flood Control Improvement Plan), and VTTM
Condition 105 (Bank Protection Plan), Developer may retain consultants as its
independent contractors to prepare the required work. The consultants shall be
as mutually agreed upon by City and Developer. Work required to be performed
by the City Engineer, the City Attorney, City's designated geologist, City's
designated geotechnical engineer, and public agencies not under the
jurisdiction of City shall not be deemed consultants for purposes of this
subsection. City further agrees to work with Developer to ensure the
economical use of consultants. The City Manager is authorized, on behalf of
the City, to approve the consultants and to do so for other conditions of
approval when, in his sole discretion, such action is consistent with the
intent of this section. When consultants are required to review work on behalf
of City, the Developer may elect to have City retain one consultant under City
direction to perform the work. In the event of such election, City shall not
add its usual and ordinary administrative costs but shall charge Developer for
all City staff time spent to administer the contract and review work. Such
costs are in addition to the condition compliance fee and other related costs.
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.
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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. Breach 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 provided, however, Developer
shall not be deemed in material breach pursuant to this subparagraph
in the event the suit or proceeding is dismissed within ninety (90)
days following the date of initiation thereof.
(c) Developer willfully violates any orders or rulings of
any regulatory body having jurisdiction over Developer relative to the
Property, 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.
(d) Developer fails to make any payments required under
this Agreement; provided, however, Developer shall not be deemed in
material breach of this subsection, unless City has given Developer
ten (10) days prior written notice of such failure and Developer has
failed to make payment within the ten day period.
(e) Developer materially breaches any of the other
provisions of the Agreement and the same is not cured within the time
set in a written notice of the breach from City to Developer, provided
that if Developer cannot reasonably cure the breach within the time
set forth in such notice, Developer fails to commence to cure such
breach within the time set forth in such notice and diligently
prosecute the cure to completion.
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11. Mortgage Protection. Whenever City delivers any
notice to Developer with respect to any breach 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 breach within fifteen (15) days after the
receipt of the notice from City. If such breach 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 breach 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 breach of
this Agreement, or if in breach, a description of each such breach. 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 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.
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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 legal owners of the Property agree to be bound by the
provisions of this Agreement or on the date that Developer takes legal title to
the Property, whichever occurs first, but in no event sooner than the date upon
which the Enabling Ordinance becomes effective pursuant to Government Code
Section 36937.
The Agreement shall remain in effect for ten (10) years from
its effective date.
The expiration of this Agreement shall not affect any right or
duty arising independently from any Entitlement that is approved by City
concurrently with, or subsequent to, the adoption of the Enabling Ordinance.
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
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To Developer: Special Devices, Incorporated
16830 Placerita Canyon Road
Newhall, CA 91321
Attn. President
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 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.
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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 or inconsistent with any
provision of the Property Approvals or IPD No. 95-2, the provisions of this
Agreement shall control and shall take precedence over and supersede the
provisions of the Property Approvals and IPD No. 95-2 to the extent of such
conflict or inconsistency, Should any provision of the Promissory Note be found
to be in conflict or inconsistent with any provision of this Agreement, the
provisions of the Promissory Note shall control and shall take precedence over
and supersede the provisions the Agreement to the extent of such conflict or
inconsistency.
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.
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.
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IN WITNESS WHEREOF, the parties have each executed this
Agreement of the date first written above.
CITY OF MOORPARK
By: /s/ PAUL W. LAWRASON JR.
---------------------------------
Paul W. Lawrason Jr.
Mayor
ATTEST
/s/ LILLIAN M. HARE
--------------------------------------
Lillian M. Hare
City Clerk
SPECIAL DEVICES, INCORPORATED
By: /s/ THOMAS F. TREINEN
---------------------------------
Thomas F. Treinen
President
__________________________, hereby agrees this ____ day of ____________, 1996 to
be bound by and perform under the provisions of this Agreement as if it were a
party hereto.
By:
---------------------------------
Name
----------------------------
Title
---------------------------
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STATE OF CALIFORNIA )
) ss.
COUNTY OF VENTURA )
On August 28, 1996 before me Lillian E. Hare, City Clerk of the City
of Moorpark, California, personally appeared Thomas F. Treinen, personally
known to me (or proved to me on the basis of satisfactory evidence) to be the
person whose name is subscribed to the within instrument and acknowledged to me
that he executed the same in his authorized capacity as President of Special
Devices, Incorporated, and that by his signature on the instrument the person,
or the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal.
Signature /s/ LILLIAN E. HARE (Seal)
-----------------------------------------
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MOORPARK
799 Moorpark Avenue Moorpark, California 93021 (805) 529-6864
PUBLIC AGENCY FORM OF ACKNOWLEDGEMENT
STATE OF CALIFORNIA)
COUNTY OF VENTURA ) ss.
On this 28th day of August, in the year 1996, before me Lillian E. Hare, City
Clerk, personally appeared Paul W. Lawrason Jr., personally known to me to be
the person who executed this instrument as the Mayor of the City of Moorpark,
California and acknowledged to me that the City of Moorpark executed it.
Lillian E. Hare, City Clerk
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LEGAL DESCRIPTION
EXHIBIT A-1
That portion of Tract "M" of the Rancho Simi, partially in the City of
Moorpark, County of Ventura, State of California, as per map re-entitled "Map
of the Lands of Rancho Simi", being Subdivision Map No. 2 of Lands of the Simi
Land and Water Company, made 1887 and 1888 by Stow and Powers, Surveyors,
recorded in Book 3, Page 7 of Maps, in the office of the County Recorder of
said County, described as follows:
That portion of the land described in deed recorded September 11, 1963 in Book
2390, Page 306, Official Records, in said County Recorder's Office, lying
Northerly and Northwesterly of the following described lines:
Beginning at an angle point in the boundary of the above mentioned land, being
the Southwest corner of Tract "I" and the Southerly terminus of that certain
course in the boundary of said land designated in said deed as bearing South
and having a length of 56 chains and considered for the purpose of this
description as bearing South 00 degrees 00' 18" East; thence along said
boundary, North 00 degrees 00' 18" West 610.00 feet to the true point of
beginning; thence South 78 degrees 43'06" West 1536.87 feet; thence South 60
degrees 17' 07" West 2360.38 feet; thence South 72 degrees 15' 15" West 2646.01
feet to a Westerly boundary of said land, being an Easterly boundary of
Moorpark Road.
EXCEPT that portion of said land lying Westerly of the Easterly line of the
land described as Parcel 1A and also except that portion described as Parcel
1E, in the Final Order of Condemnation, recorded May 22, 1969 in Book 3492,
Page 234, Official Records.
ALSO EXCEPT one half of 27/40ths interest of all oil and mineral rights below
500 feet from the surface, but without the right of surface entry, as reserved
by Vivian Agoure Escallier, et al., in deed recorded September 11, 1963 in Book
2390, Page 306, of Official Records.
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ALSO EXCEPT one half of 13/40ths interest of all oil and mineral rights, below
500 feet from the surface, but without the right of surface entry, as reserved
by Peter Vail, as Guardian of the estate of Angele Agoure Vail, an incompetent
person, in deed recorded October 17, 1963 in Book 2410, Page 561 of Official
Records.
ALSO EXCEPT 25% of all minerals, coal, oil, petroleum, gas, asphaltum and
kindred substances, now or hereafter in or under said land below a depth of 500
feet from the surface thereof, without the right of surface entry, as reserved
in the deed dated December 13, 1966 from Milan Roven and Abraham Spiegel,
recorded December 20, 1966 in Book 3081, Page 337, Official Records.
Prepared by South Bay Engineering Company
ROSS N. BOLTON
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LEGAL DESCRIPTION
EXHIBIT A-2
PARCEL 1
That portion of Tract "M", Rancho Simi, as shown on map recorded in Book
3, page 7 of Maps, in the office of the County Recorder of said county as
acquired by the State of California by Final Order of Condemnation, filed in
Superior Court Case no. 50755, in and for said county, a certified copy of
which was recorded May 22, 1969 in Book 3492, page 234 of Official Records in
said office, described as follows:
Beginning at the Southerly terminus of that certain course described in
Parcel IA of said Condemnation as course "(31) S 18 degrees 20'04"E, 150.00
feet"; thence along the generally Easterly lines of said Parcel IA the
following (6) six courses:
(1) course "(32)" S 22 degrees 23'08" E, 620.66 feet,
(2) course "(33)" N 53 degrees 37'53" E, 424.26 feet,
(3) course "(34)" S 24 degrees 25'28" E, 367.89 feet,
(4) course "(35)" S 51 degrees 37'53" E, 192.46 feet,
(5) course "(36)" S 7 degrees 47'37" E, 130.59 feet,
(6) course "(37)" S 30 degrees 11'43" W, 537.28 feet;
thence leaving said generally Easterly lines, N 0 degrees 24'36" W, 572.67
feet; thence N 27 degrees 44" 07"W, 322.87 feet; thence S 61 degrees 45" 26"W,
335.00 feet; thence N 19 degrees 02' 33"W, 1033.21 feet to the Southerly line
of the Southern Pacific Railroad Company Right of Way, 100.00 feet wide as
described in Book 77, page 370 of Deeds in said office; thence Easterly along
said Southerly line N 75 degrees 42'14"E, 77.50 feet to the Northerly terminus
of that certain course described in said Parcel 1A as course "(30) S 11 degrees
04'53 E, 186.29 feet"; thence along said courses (30) S 11 degrees 04'53"E,
186.29 feet and (31) S 18 degrees 20'04"E, 150.00 feet to the point of
beginning.
TOGETHER with the right of access over and across courses (30) through
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(37) of said Parcel 1A, as well as the Easterly 120.00 feet of the
above-described course of: S 61 degrees 45'26"W, 335.00 feet and the northerly
120.00 feet of the above-described course of N 27 degrees 44'07" W, 322.87 feet;
also, for emergency vehicle use (only) the Northerly 50.00 feet of course (38)
of said parcel 1A (N 17 degrees 01'41"W, 340.64 feet) and the Southerly 50.00
feet of the above-described course of: N 0 degrees 24'36"W, 572.67 feet.
There shall be no other abutter's rights of access appurtenant to the
above-described real property in and to the adjacent State Freeway.
PARCEL 2
That portion of Tract "M", Rancho Simi, as shown on map recorded in Book
3, page 7 of Maps, in the office of the County Recorder of said county, as
acquired by the State of California by Final Order of Condemnation, filed in
Superior Court Case No. 50755, in and for said county, a certified copy of
which was recorded May 22, 1969 in Book 3492, page 234 of Official Records in
said office, described as follows:
Beginning at the Westerly terminus of that certain course described in
Parcel 1E of said Final Order of Condemnation as S 75 degrees 42'14"W, 570.68
feet; thence along said certain course N 75 degrees 42'14" E, 570.68 feet to a
tangent curve concave Southwesterly and having a radius of 74.00 feet; thence
Southeasterly along said curve through an angle of 78 degrees 21'50", an arc
distance of 101.21 feet; thence tangent to said curve N 25 degrees 55'56"W,
90.00 feet; thence N 65 degrees 33'06"W, 142.39 feet; thence N 24 degrees
07'03" W, 135.80 feet to the Southerly line of the Southern Pacific Railroad
Right of Way, 100.00 feet wide as shown in Book 77, page 370 of Deeds in said
office; thence Westerly along said Southerly line S 75 degrees 42'14" W, 485.00
feet to the Northerly terminus of that certain course described in Parcel 1A of
said Final Order of Condemnation as course "(30) S 11 degrees 04'53" E, 186.29
feet"; thence Southerly along said course (30) S 11 degrees 04'53" E, 186.29
feet; thence Southerly along course (31) of said Parcel 1A, S 18 degrees
20'04"E, 66.17 feet to the point of beginning.
PARCEL 3
ALSO THE STATE OF CALIFORNIA, acting by and through its Director of
Transportation, does hereby release and QUITCLAIM to the hereinabove named
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grantee, in the same manner of vesting as hereinabove set forth, all right,
title and interest in and to all that real property described as Parcel 1F
(slope easement), in said Final Order of Condemnation (State parcel 44485-6).
SUBJECT TO THE EXCEPTION THEREFROM, of all oil, minerals, natural gas and
other hydrocarbons by whatsoever name known, that may be within or under the
herein conveyed parcels of land, and the rights thereto, together with certain
other conditions, as excepted and reserved in Parcels 1A and 1E of the above
mentioned Final Order of Condemnation.
Prepared by South Bay Engineering Company
ROSS N. BOLTON
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EXHIBIT B
PROMISSORY NOTE SECURED BY DEED OF TRUST
______________, California
________________, 1996
For value received, SPECIAL DEVICES, INCORPORATED, a Delaware corporation,
("Developer") promises 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 that certain Development Agreement dated August 21, 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. Principal Amounts, Terms of Payment, and Acceleration of
Payment.
A. If, for any reason, Developer does not (i) build the Project
facilities described in Industrial Development Permit ("IPD") No. 95-2 and any
minor modification thereto that is approved by City and (ii) relocate the Los
Angeles County operations of Special Devices, Incorporated to the Project
facilities within three (3) years after the effective date of the Agreement,
Developer shall pay City:
(1) The sum of FOUR HUNDRED NINETY-TWO THOUSAND, THREE HUNDRED AND
FIFTY-ONE DOLLARS ($492,351.00), which sum shall be due and payable in
the amounts and at the times as follows:
(a) At any time any part of Lot 1 or Lot 2 of Vesting Tract Map No.
5004 is sold or leased to a third party (except for month to month
leases), Developer shall pay City $246,175.00. Payment is due upon
close of escrow of the sale or upon execution of the lease or the
third (3rd) anniversary of the effective date of this Agreement,
whichever is later.
(b) At any time Lot 3 of Vesting Tract Map No. 5004 is sold or
leased to a third party (except for month to
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month leases) and (a) above has occurred, Developer shall pay City
$246,176.00; however, if (a) above has not occurred or if (a) above
has occurred prior to the third (3rd) anniversary of the effective
date of this Agreement, then Developer shall pay City $492,351.00.
Payment is due upon close of escrow of the sale or upon execution of
the lease;
(c) At any time a final map for any subsequent subdivision of Lot 3
of Vesting Tract Map No. 5004 is approved and (a) above has occurred,
Developer shall pay City $246,176.00; however, if (a) above has not
occurred then Developer shall pay City $492,351.00. Payment is due
prior to the recordation of said final map;
(d) On the tenth (10th) anniversary of the effective date of the
Agreement, Developer shall pay City any portion of the $492,351.00
not previously paid to City pursuant to (a), (b) and (c) above; and
(2) The sum of SEVENTY-FIVE THOUSAND DOLLARS ($75,000.00) per year
for four consecutive years, for a total of Three Hundred Thousand Dollars.
Payments shall begin on the fourth (4) anniversary of the effective date
of the Agreement; provided, however, if Developer relocates to the Project
facilities after the third anniversary of the effective date of the
Agreement, no further payments of the aforementioned Three Hundred
Thousand Dollars ($300,000.00) shall be due and owing, except that the
annual amount that would otherwise have been due and payable on the next
succeeding anniversary date shall be prorated as of the date of initial
occupancy of the Project facilities and shall be paid to City on the date
of initial occupancy. (E.g., if such relocation occurs three (3) months
after the fourth anniversary, then Developer would have paid Seventy Five
Thousand Dollars ($75,000.00) on the fourth anniversary and would pay
Eighteen Thousand Seven Hundred Fifty Dollars ($18,750.00) on the date of
initial occupancy. The remaining Two Hundred Six Thousand, Two Hundred
and Fifty Dollars ($206,250.00) would not be owed by Developer.)
B. If, for any reason, Developer does not employ the number of
full-time employees required by this subparagraph at the Project facilities
described in Industrial Development Permit ("IPD") No. 95-2 and has not made
one or more payments to City pursuant to subparagraph A of this Paragraph,
Developer pay city:
(1) The sum of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00) each of the
three (3) years that the minimum number of full-time employees specified
hereinbelow are not employed at the Project facilities, which sums shall
be due and payable within
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sixty (60) days after the applicable anniversary of the Project
facilities.
The number of full-time employees employed at the Project facilities
on the date of initial occupancy is hereinafter referred to as the Initial
Number. Initial occupancy shall mean the last day of the month in which
the first certificate of occupancy for the Project facilities is issued
plus sixty (60) calendar days. As of the first anniversary of the initial
occupancy, the number of full-time employees employed at the Project
facilities shall be not less than the Initial Number plus the First Year
Number. The "First Year Number" shall mean the Initial Number plus
seventy-five, provided that if the Initial Number is reduced during the
first year by the attrition of employees who were employed full-time at
the Project facilities at initial occupancy ("original employees") and
their positions are refilled by the hiring of new full-time employees
prior to the first anniversary of the Project facilities ("new
employees"), the 75 shall be reduced by the number of new employees.
(E.g., if there were 490 full-time employees at initial occupancy and 30
new full-time employees were hired prior to the first anniversary of the
Project facilities to replace 30 of the original full-time employees, the
First Year Number is 490 plus 75 minus 30 for a total of 535 full-time
employees.) As of the second anniversary of the initial occupancy, the
number of full-time employees employed at the Project facilities shall be
not less than the First Year Number plus 75 ("the Second Year Number").
As of the third anniversary of the initial occupancy, the number of
full-time employees employed at the Project facilities shall be not less
than the First Year Number plus 150 ("the Third Year Number").
and
(2) The sum of THREE HUNDRED AND THIRTY-THREE DOLLARS ($333.00)
times the Additional Number of full-time employees specified hereinbelow
that are not employed at the Project facilities as of the third
anniversary thereof, which sum shall be due and payable within sixty (60)
days after the third anniversary of the Project facilities.
In the event that the Initial Number, as defined in subparagraph
B.(1) above, is less than 490, the Third Year Number, as defined in
subparagraph B.(1) above, shall be increased by the difference between the
Initial Number and 490 ("the Additional Number") up to a cap of 100. (E.g.
if the Initial Number is 380 then using the example from subparagraph
B.(1) above, the First Year Number is 425 (380 plus 75 minus 30) and so
the Third Year Number of 575 (425 plus 150) shall be increased by the
Additional Number of 100 for a total of 675 full-time employees.)
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C. Upon City's request, Developer shall provide City with access,
during normal business hours and at the Project facilities, to payroll and
related records necessary to determine if Developer is in compliance with the
full-time employee requirements of subparagraph A and B of this Paragraph.
D. Developer shall have the right to prepay all or part of the
amounts specified in subparagraphs A and B of this Paragraph at any time or
times.
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 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
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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 Dead of Trust with Assignment of Rents of even date
herewith (the "Deed of Trust").
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
Special Devices, Incorporated
16830 Placerita Canyon Road
Newhall, CA 91321
Attn: President
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
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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 DEVICES, INCORPORATED
By:
-------------------------------
Thomas F. Treinen
President
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EXHIBIT C
RIDER TO DEED OF TRUST
THIS RIDER TO DEED OF TRUST is attached to and incorporated by reference
in that certain Deed of Trust with Assignment of Rents dated _______, 1996,
by and between SPECIAL DEVICES, INCORPORATED, a Delaware corporation
("Trustor"), , a corporation ("Trustee"),
and CITY OF MOORPARK ("Beneficiary").
Said Deed of Trust is hereby modified, and as modified is hereinafter
referred to as "this Deed of Trust", in the following particulars only:
1.1 Subordination to Loans
A. This Deed of Trust shall be automatically subordinated to a deed
of trust to be executed by Trustor to secure a loan (hereinafter referred to as
"the Construction Loan") that is obtained by Trustor for the purpose of
constructing the Project (as defined in that certain Development Agreement
dated August 21, 1996 between Trustor and Beneficiary) on the property,
provided that:
(a) At the time of recordation of the deed of trust securing
the Construction Loan, no unrescinded Notice of Default of this Deed
of Trust appears of record and Trustor is not in default in the
payment of any taxes or assessments affecting said property; and
(b) The amount of the Construction Loan secured by the deed of
trust does not exceed Eighteen Million Dollars ($18,000,000), the
annual interest rate does not exceed the reference rate charged by
the Bank of America or any successor bank to its best customers
(which is not necessarily the lowest rate charged by the bank) plus
ten (10) percentage points, the term is not more than sixty (60)
months, and the loan origination fee does not exceed five (5) points.
B. This Deed of Trust shall be automatically subordinated to a deed
of trust to be executed by Trustor upon completion of the Project on the
property to secure a loan that is obtained by Trustor to provide permanent
financing for the purchase of the property and construction of the Project
(hereinafter referred to as "the Take-out Loan"), provided that:
(a) At the time of recordation of the deed of trust securing
the Take-out Loan, no unrescinded Notice of Default of this Deed of
Trust appears of record and Trustor is not in default in the payment
of any taxes or assessments affecting said property;
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(b) The amount of the Take-out Loan secured by the deed of
trust does not exceed the lesser of Eighteen Million Dollars
($18,000,000) or eighty percent (80%) of the then appraised value of
Lot 3 of Vesting Tract Map. 5004, the annual interest rate does not
exceed the reference rate charged by the Bank of America or any
successor bank to its best customers (which is not necessarily the
lowest rate charged by the bank) plus ten (10) percentage points, the
term does not exceed thirty (30) years, the loan may be amortizing or
payable interest only, at Trustor's option, and the loan origination
fee does not exceed five (5) points; and
(c) The amount of the Construction Loan is paid in full and the
deed of trust securing the Construction Loan is fully reconveyed.
1.2 Partial Release Following Recordation of Map. At any time after
the recordation of the final map for Vesting Tract No. 5004 in the office of
the County Recorder of the County of Ventura (the "Final Map"), Beneficiary
shall cause Trustor to, and Trustee shall, release all of the Property, except
Lot 3 as designated on the Final Map ("Lot 3"), from the lien or charge of this
Deed of Trust under the following terms and conditions:
(a) Trustor shall submit a written request for the release of all of the
Property, except Lot 3, from the lien or charge of this Deed of Trust;
(b) No release shall be granted at any time that Trustor is in
default under the promissory note of even date herewith, in the event
that an unrescinded Notice of Default appears of record; and
(c) Trustor shall pay to Trustee the costs of executing and
recording any documents needed to release all of the Property, except
Lot 3, from the lien or charge of this Deed of Trust.
1.3 Further Assurances. Beneficiary shall promptly, and in any event
within five (5) days following the written request of Trustor, execute such
subordination and release documentation and such other and further documents as
Trustor or Trustor's Lender may require, in recordable form, to release any
portion of the Property from this Deed of Trust or to subordinate the lien of
this Deed of Trust to the lien of the deed of trust to which this Deed of Trust
is subordinated or to which Beneficiary has agreed to make this Deed of Trust
subordinate hereby. Any subordination documentation that is consistent with
then prevailing industry practice for major commercial lenders and not
incompatible with the provisions of this paragraph shall be deemed reasonable.
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1.4 Severability. If any provision of this Deed of Trust or the
application hereof to any person or circumstance shall be invalid or
unenforceable to any extent, the remainder hereof and the application hereof to
other persons or circumstances shall not be effected thereby and shall be
enforced to the extent permitted by law.
1.5 Attorneys' Fees. In the event any action, suit or other legal
proceeding is brought for the enforcement of, or the declaration of, any right
or obligation pursuant to this Deed of Trust or as a result of any alleged
breach of any provision of this Deed of Trust, the prevailing party shall be
entitled to recover its costs and expenses, including reasonable attorneys'
fees, from the losing party, and any judgment or decree rendered in such a
proceeding shall include an award thereof. In the event of nonjudicial
foreclosure of this Deed of Trust, Beneficiary shall be entitled to recover its
costs and expenses, including reasonable attorneys (sic) fees, from the losing
party, and any judgment or decree rendered in such a proceeding shall include
an award thereof. In the event of nonjudicial foreclosure of this Deed of
Trust, Beneficiary shall be entitled to recover its reasonable attorney's fees
and costs, which shall be deemed secured by this Deed of trust, from proceeds
of the sale or as a condition to reinstatement of this Deed of Trust.
1.6 Conflict. In the event of any conflict between the terms of this
Rider to Deed of Trust and the Deed of Trust to which this Rider is attached,
the terms of this Rider shall control.
CITY OF MOORPARK
By:
-------------------------------
Paul W. Lawrason Jr.
Mayor
ATTEST
------------------------------------
Lillian M. Hare
City Clerk
SPECIAL DEVICES, INCORPORATED
By:
-------------------------------
Thomas F. Treinen
President
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