HomeMy WebLinkAboutAGENDA REPORT 1998 0506 CC REG ITEM 10GAGENDA REPORT
CITY OF MOORPARK
TO: Honorable City Council
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ITEM 10 • G•
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FROM: Steven Kueny, City Manager 4.
DATE: May 1, 1998 (CC Meeting of 5/6/98)
SUBJECT: Status Report on Proposed Development Agreement for
Specific Plan No. 8 / Hidden Creek Ranch (Messenger)
Discussion
Attached is a preliminary draft of the Development Agreement. The
Ad Hoc Committee (Councilmembers Perez and Wozniak) and staff
continue to meet with representatives of Messenger Investments to
negotiate the proposed language of certain deal points (Developer
and City Agreements, Sections 6. And 7., respectively). Some of
the language of the agreement sections contained in this draft
(especially the affordable housing provision) is still being
negotiated. In addition, the remaining points to be negotiated
include but are not limited to the following:
A. Developer Agreements
1. Pay all fees at their then applicable rates including but
not limited to police and fire facilities at the same
rate(s) as for similarly situated projects.
2. To not use applicable provisions of state law allowing
density bonus to increase the number of dwelling units
above the number approved in the Specific Plan.
3. Limits on oil drilling.
4. Signalize all intersections as determined desired by City
at its sole discretion.
5. Dedicate a one (1) acre site for a fire station with no
offset against fees.
I
Specific Plan No.
May 6, 1998
Page 2
8 / Hidden Creek
6. Cooperate to create a mechanism to address maintenance of
certain landscaping and other items consistent with
provisions of Proposition 218.
B. City Agreements
1. Hidden Creek Ranch is exempt from Los Angeles Avenue Area
of Contribution fees.
2. To sell portion of Griffin Park land at fair market value
for street widening.
3. Accept ownership of certain open space lands as
determined by City.
4. Early grading agreement.
5. Concurrent processing when feasible.
6. Accept parks and improvements as meeting Quimby
requirements.
7. Assist Hidden Creek Ranch with formation of assessment
district financing for infrastructure improvements.
8. Assist Hidden Creek Ranch with obtaining tax advantages
for dedication of public natural open space areas.
9. Use eminent domain authority to acquire land outside of
City necessary for infrastructure improvement so long as
such action is allowed by law.
Please note that Section 5. Vesting of Development Rights also
contains important considerations granted by the City including
hillside ordinance and growth management exemptions.
The Committee and staff are confident that the final draft
agreement can be presented to the Council for consideration on May
20. We are prepared to address questions and comments on the
preliminary draft but a recommendation on further action is not
being presented at this time.
Specific Plan No. 8 / Hidden Creek
May 6, 1998
Page 3
Recommendation
Consider report from Ad Hoc Committee and continue to May 20, 1998
meeting.
Attachment: Preliminary Draft Development Agreement
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
• • . - • 8 1___.. '
AND
OWNERS OF LAND WITHIN
HIDDEN CREEK SPECIFIC PLAN NO. 8
LAX2:203723.6
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
LAX2:203723.6
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into by and between the CITY OF MOORPARK, a municipal
corporation, (referred to hereinafter as "City ") and certain owners
of real property within Hidden Creek Specific Plan No. 8 (referred
to hereinafter individually as "Developer" and collectively as
"Developers "). City and Developers are referred to hereinafter
individually as "Party" and collectively as "Parties." In
consideration of the mutual covenants and agreement's contained in
this Agreement, City and Developers 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:
1.1. Pursuant to Government Code section 65864 et sea. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within its sphere of
influence for the development of such property upon
annexation in order to establish certainty in the
development process.
1.2. Prior to approval of this Agreement, but after the
certification of that certain Hidden Creek Ranch/
Specific Plan No. 8 Final Environmental Impact Report
( "the EIR"), the City Council of City ( "the City
Council ") approved a mitigation monitoring program to
insure compliance with the mitigation measures
contained in the EIR ( "the Mitigation Monitoring
Program "), approved General Plan Amendment No. 93 -1
( "GP 93 -111) and Hidden Creek Specific Plan No. 8 ( "SP
93 -111) for approximately 4323 acres of land within the
sphere of influence of City ( "the Property "), as more
specifically described in Exhibit "A" attached hereto
and incorporated herein, and prezoned the Property
pursuant to Zone Change No. 93 -3 ("ZC 93 -311).
1.3. Each Developer has a legal interest in a portion of the
Property, as more specifically described in Exhibit "B"
LAX2:203723.6 - 1 -
attached hereto and incorporated herein. Hidden Creek
Ranch, L.P. ( "HCR") is a Developer that owns
approximately acres of the Property ( "the HCR
Property ").
1.4. GP 93 -1, SP 93 -1 and ZC 93 -3 (collectively "the Project
Approvals; individually "a Project Approval ") provide
for the development of the Property as a master planned
community and the construction of certain off -site
improvements in connection therewith ( "the Project ").
1.5. HCR has agreed to provide public school facilities,
kindergarten through 12th grade, to serve the Project
in accordance with that certain Facilities and
Financing Plan entered into between HCR and the
Moorpark Unified School District ( "MUSD").
1.6. By this Agreement, City desires to obtain the binding
agreement of Developers to develop the Property in
accordance with the Project Approvals and this
Agreement. 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.
1.7. By this Agreement, Developers desire to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. In consideration thereof, each
Developer agrees to waive its rights to legally
challenge the limitations and exactions imposed upon
the development of the Property pursuant to the Project
Approvals and this Agreement and to provide the public
benefits and improvements specified in this Agreement.
1.8. City and Developers all acknowledge and agree that the
consideration that is to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the General Plan of City,
as amended by GP 93 -1.
1.9. On , 1998, the Planning Commission of City
commenced a duly noticed public hearing on this
LAX2:203723.6 - 2 -
Agreement and at the conclusion of the hearing
recommended approval of the Agreement.
1.10. On , 1998, the City Council commenced a duly
noticed public hearing on this Agreement and at the
conclusion of the hearing approved the Agreement by
Ordinance No. ( "the Enabling Ordinance ").
2. Property Subject To This Agreement. All of the Property shall
be subject to this Agreement. The Property may be referred to
hereinafter as "the site" or "the Project area ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms "City ", "Developer" and "Developers" are used herein,
such terms shall include every successive successor in
interest thereto, except that the terms "Developer" and
"Developers" shall not include the purchaser or transferee of
any lot within the Project area that has been fully developed
in accordance with the Project Approvals and this Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which a Developer has a
legal interest is, and shall be, conclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Upon the sale or transfer of
any Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
transferred subsequent to the effective date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
deliver to City a written assumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
LAX2:203723.6 -3-
4
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by the Project Approvals and
this Agreement.
4.2. Development Standards. All design and development
standards, including but not limited to density or
intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are
set forth in the Project Approvals and this Agreement.
4.3. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation and the Uniform
Administrative Code in effect at the time the plan
check or permit is approved and to any federal or state
building requirements that are then in effect
(collectively "the Building Codes ").
4.4. Reservations and Dedications. All reservations and
dedications of land for public purposes that are
applicable to the Property are set forth in the Project
Approvals and this Agreement.
LAX2:203723.6 - 4 -
5.1. Timing of Development. In Pardee Construction Co v
City of Camarillo, 37 Cal.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later- adopted initiative
restricting the rate of development to prevail against
the parties' agreement. City and Developers intend to
avoid the result in Pardee by acknowledging and
providing that Developers shall have the right, without
obligation, to develop the Property in such order and
at such rate and times as Developers deems appropriate
within the exercise of their subjective business
judgment.
In furtherance of the Parties intent, as set forth in
this section, no future amendment of any existing City
ordinance or resolution, or future adoption of any
ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property. In particular, but without limiting any of
the foregoing, no numerical restriction shall be placed
on the number of dwellings units that can be built each
year within the Project Area. However, nothing in this
section shall be construed to limit City's right to
insure that Developers timely provide all
infrastructure required by the Infrastructure and
Financing Plan, as described in section 6. hereof.
5.2. Amendment of Rroject Approvals. No amendment of any of
the Project Approvals, whether adopted or approved by
the City Council or through the initiative or
referendum process, shall apply to any portion of the
Property, unless every Developer of the affected
portion of the Property has agreed in writing to the
amendment. No amendment shall provide benefits to any
Developer on terms more favorable than those provided
to HCR by the Project Approvals or this Agreement.
LAX2:203723.6 - 5 -
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g.
site plans, architectural plans and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal Code and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City (collectively "City Laws "),
except City Laws that:
(a) change any permitted or conditional permitted uses
of the Property from what is allowed by the Project
Approvals;
(b) limit or reduce the density or intensity of the
Project, or any part thereof, or otherwise require any
reduction in the square footage or number of proposed
buildings or other improvements from what is allowed by
the Project Approvals.
(c) limit or control the rate, timing, phasing or
sequencing of the approval, development or construction
of all or any part of the Project in any manner,
provided that all infrastructure required by the
Infrastructure and Financing Plan to serve the portion
LAX2:203723.6 - 6 -
of the Property covered by the Subsequent Approval is
in place or is scheduled to be in place prior to
completion of construction;
(d) are not uniformly applied on a City -wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations;
(e) control residential or commercial rents; or
(f) prohibit or regulate development on slopes with
grades greater than 20 percent, including without
limitation Moorpark Municipal Code chapter 17.38 or any
successor thereto, within planning units and
of SP 93 -1.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire seven (7) years after its approval or
conditional approval or upon the expiration or earlier
termination of this Agreement, whichever occurs first,
notwithstanding the fact that the final map may be
filed in phases. Each Developer hereby waives any
right that it may have under the Subdivision Map Act,
Government Code section 66410 et seq, or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
The term of any Subsequent Approval, except a tentative
map, shall be one year; provided that the term may be
extended by the decision maker for two (2) additional
one (1) year periods upon application of the Developer
holding the Subsequent Approval filed with City's
Department of Community Development prior to the
expiration of that Approval. Each such Subsequent
Approval shall be deemed inaugurated, and no extension
shall be necessary, if a building permit was issued and
the foundation received final inspection by City's
LAX2:203723.6 - 7 -
Building Inspector prior to the expiration of that
Approval.
It is understood by City and Developers that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly, throughout the term of
this Agreement, any Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, each Developer shall have the right, at its
election and without risk to any right that is vested
in it pursuant to this section, to apply to City for
minor modifications to Project Approvals and Subsequent
Approvals. 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 modification, a finding is
made that the modification is consistent with this
Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from any Developer if all
infrastructure required by the Infrastructure and
Financing Plan to serve the portion of the Property
covered by the building permit is in place or is
scheduled to be in place prior to completion of
construction and all of the other relevant provisions
of the Project Approvals, Subsequent Approvals and this
Agreement have been satisfied. In no event shall
building permits be allocated on any annual numerical
basis or on any arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of
a final inspection or certificate of occupancy,
LAX2:203723.6 - 8-
provided that the moratorium is adopted or imposed (i)
on a City -wide basis to all substantially similar types
of development projects and properties with similar
land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
0 IAQ I -
6.1. General Obligations. Each Developer shall comply with
(i) this Agreement, (ii) the Project Approvals, (iii)
all Subsequent Approvals for which it was the applicant
or a successor in interest to the applicant and (iv)
the Mitigation Monitoring Program and any subsequent or
supplemental program.
6.2. Schools. Any land within the Project area that is
dedicated to MUSD, or any successor district, shall be
deed restricted in the form of a covenant running with
the land, as set forth in Exhibit "A" attached hereto
and incorporated herein, to limit use of the land to
public school facilities, kindergarten through 12th
grade, and the covenant shall be recorded in the
offices of the County Recorder of the County of Ventura
concurrently with the deed transferring fee title to
MUSD or a successor district.
6.3. Dedicated Property Shall Be Unencumbered. All lands
and interests in land dedicated to City shall be free
and clear of liens and encumbrances other than
easements or restrictions that do not preclude or
interfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.4. As a condition of the issuance of a building permit for
each commercial or institutional use within the
boundaries of the Specific Plan, HCR shall pay City a
fee to be used for park improvements within the City of
Moorpark. The amount of the fee shall be twenty -five
cents ($.25) per square foot of gross floor area. The
fee shall be adjusted annually (commencing one (1) year
after the first residential building permit is issued
I.AX2:203723.6 -9-
within the Specific Plan) by any increase in the
Consumer Price Index (CPI) until all fees have been
paid. 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 which is four
(4) months prior to the month in which the Development
Agreement is approved by the City Council (e.g., if
approval occurs in June, then the month of February is
used to calculate the increase). Institutional uses
shall pay on the same basis as commercial uses, except
that institutional uses which are exempt from secured
property taxes shall be exempt from the fee. This fee
may be expended by City in its sole and unfettered
discretion.
6.5. As a condition of the issuance of a building permit for
each residential, commercial, or institutional use
within the boundaries of the Specific Plan, HCR shall
pay City a development fee as described herein (the
"Development Fee ") . The Development Fee may be
expended by City in its sole and unfettered discretion.
On the effective date of this Agreement, the amount of
the Development Fee shall be Seven Thousand Dollars
($7,000.00) per residential unit and Thirty -One
Thousand Five Hundred Dollars ($31,500.00) per gross
acre of commercial or institutional land on which the
commercial use is located. The fee shall be adjusted
annually (commencing one (1) year the first residential
building permit is issued within the Specific Plan) by
any increase in the Consumer Price Index (CPI) until
all fees have been paid. 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 which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
LAX2 :203723. 6 _10-
6.6. As a condition of the issuance of a building permit for
each residential, commercial, or institutional use
within the boundaries of the Specific Plan, HCR shall
pay City a traffic mitigation fee as described herein
("Citywide Traffic Fee ") . The Citywide Traffic Fee may
be expended by City in its sole and unfettered
discretion. On the effective date of this Agreement,
the amount of the Citywide Traffic Fee shall be Four
Thousand Dollars ($4,000.00) per residential unit and
Eighteen Thousand Dollars ($18,000.00) per acre of
commercial and institutional land on which the
commercial or institutional use is located. Commencing
on January 1, 2001, and annually thereafter, both
categories of the Citywide Traffic Fee shall be
increased to reflect the change in the Highway Bid
Price Index for the twelve (12) month period that is
reported in the latest issue of the Engineering News
Record that is available on December 31 of the
preceding year ( "annual indexing ") . In the event there
is a decrease in the referenced Index for any annual
indexing, the Citywide Traffic Fee shall remain at its
then current amount until such time as the next
subsequent annual indexing which results in an
increase.
6.7. As a condition of issuance of a building permit for
each residential, commercial, or institutional use
within the boundaries of the Specific Plan, HCR shall
pay City a community services fee as described herein
(Community Services Fee). The Community Services Fee
may be expended by City in its sole and unfettered
discretion. This fee is intended to offset the lower
property tax rate for the properties in the Specific
Plan than for other areas of the City. The amount of
the Community Services Fee shall be Forty -eight Hundred
Dollars ($4,800.00) per residential unit and Twenty -two
Thousand Six Hundred Dollars ($22,600.00) per gross
acre of commercial and institutional land on which
commercial or institutional use is located. The fee
shall be adjusted on the seventh, twelfth, seventeenth,
and twenty- second anniversaries of the operative date
of this Agreement. The adjustment shall be the average
increase of the median home price in Ventura County for
LAX2:203723.6 - 11 -
the preceding five (5) year period.
6.8. HCR shall grant a conservation easement to retain the
lots shown as Open Space /Golf Course and Golf Course
with only those uses shown as permitted in the
Development Regulations Section 5 of the approved
Specific Plan for the Golf Course and Golf Course /Open
Space Zones. 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 City's noise standards.
The conservation easement shall be recorded
concurrently with
6.9. On the operative date of this Agreement, Developer
shall pay all outstanding City processing and
environmental impact report costs related to Specific
Plan No. 8 and for preparation of this Agreement.
6.10. Within ninety (90) days of the operative date of this
Agreement, HCR shall pay the City One Hundred Thirty
Thousand ($130,000.00) to offset unreimbursed City
costs and accrued interest thereon for work related to
the 1992 General Plan update and Sphere of Influence
Study that benefitted HCR.
6.11. Within the boundaries of the Specific Plan, HCR shall
dedicate, at its sole cost and expense, park land to
the City as shown on the Specific Plan. At their sole
LAB2:203723.6 -12-
cost and expense but subject to the limitations set
forth in this subsection, HCR shall make improvements
to the park land dedicated pursuant to this subsection
and shall provide maintenance of the land and
improvements.
For the park site in planning Unit 42A (Community Park
Site), the improvements shall include, at City's sole
discretion, one or more of each of the following items
except I. which shall be limited to only one:
A. Softball field with a minimum of 300 foot
outfield radius with no obstructions, backstop,
foul line chain link fencing, fenced dugouts
with concrete floors, and bleachers on concrete
pads to seat 150 people with lighting for up to
four (4) fields;
B. Regulation soccer field, 225 feet wide and 360
feet long with no obstructions, that does not
overlap onto the softball field area, except as
approved by the City Council, and two (2) semi-
permanent goals with lighting for up to four
(4) fields;
C. Lighted tennis courts;
D. Full basketball court;
E. Children's play equipment /apparatus and tot
lots;
F. Concrete block restroom with tile roof;
G. Picnic shelter with solid roof and matching
tile to the restroom; and
H. Off - street parking with standard sized parking
spaces.
I. One gymnasium and recreation center with the
same square footage as the gymnasium and
recreation center at Arroyo Vista Community
LAX2:203723. 6 -13 -
Park, except that the gymnasium shall
accommodate two (2) regulation sized volleyball
courts with adequate out -of- bounds areas to be
overlaid perpendicular to a regulation sized
basketball court.
The full cost of said improvements shall not exceed
$ This amount shall be adjusted
annually... (commencing one (1) year after the first
residential building permit is issued within the
Specific Plan) by any increase in the Consumer Price
Index (CPI) until all fees have been paid. 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 which is four (4) months prior to the month
in which the Development Agreement is approved by the
City Council (e.g., if approval occurs in June, then
the month of February is used to calculate the
increase).
For the two (2) park sites in planning units 42C and
42D (neighborhood parks), the improvements shall
include, at City's sole discretion, one or more of each
of items A. through H. above for each site. The full
cost of said improvements at both sites shall not
exceed $ The fee shall be adjusted annually
(commencing one (1) year after the first residential
building permit is issued within the Specific Plan) by
any increase in the Consumer Price Index (CPI) until
all fees have been paid. 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 which is four (4) months prior to the month in
which the Development Agreement is approved by the City
Council (e.g., if approval occurs in June, then the
month of February is used to calculate the increase).
LAX2:203723.6 -14-
Final design, plans and specifications shall be as
approved by the City Council, including applicable
handicapped requirements, and shall include but not be
limited to grading, street improvements, drainage,
hardscape (walkways, bike paths, etc.) landscape
(trees, shrubs, groundcover, and turf), security
lighting for the park and parking lot, and
miscellaneous amenities in quantities as determined
necessary by City (tot lot and park perimeter fencing,
trash receptacles, trash bin enclosures, bike racks,
barbecues, picnic tables, pay telephone, identification
monument signs, and other signage, etc.). In addition
to water, sewer and electrical services, the
improvements shall include stub out into the park at a
location determined by City for natural gas, telephone,
and cable television services; and if the park is
allowed to be rough graded prior to installation of
improvements, it shall be hydroseeded and provided with
other appropriate means of erosion control. At their
sole cost and expense, HCR shall: (i) design the park
improvements and submit conceptual plans for City
approval, (ii) prepare final design, plans and
specifications and submit the same to City Council for
approval, (iii) submit the approved final plans and
specifications to City for plan check along with
appropriate fees, and (iv) pay City for inspection of
the construction.
The parks shall be dedicated to City improved and
available (open) to the public prior to the occupancy
of the dwelling unit within the boundaries of the
Specific Plan. After each park is opened to the public
and prior to its formal acceptance by City, HCR shall
provide a minimum of one year's maintenance for the
park land and improvements, including all labor,
materials, and water, in accordance with the
specifications used by City at its parks. All land
provided by HCR to City for parks, recreation and open
space purposes shall be deeded to City without any
restrictions for current or future use.
HCR agrees that the above - described improvements along
with the dedication of the above - described park land
LAX2:203723.6 -15 -
shall be deemed to satisfy the "Quimby" requirement set
forth at California Government Code Section 66477 et
sea. for all subsequent subdivision maps within the
Specific Plan area for a maximum of 3,221 residential
units. HCR shall secure the above - described
improvements and the one -year maintenance requirement
by the execution of City's standard subdivision
agreement prior to the approval of the first final
tract map or the first final parcel map within the
Specific Plan area.
6.12. As a condition of the issuance of a building permit for
each residential, commercial, or institutional use
within the boundaries of the Specific Plan, HCR shall
pay City a library facilities fee as described herein
(Library Facilities Fee). The Library Facilities Fee
to be paid shall be ... (the text of existing Chapter
3.36 of the Moorpark Municipal Code shall be inserted
here.) For purposes of this fee, commercial and
institutional uses shall be considered non- residential
construction.
6.13. HCR shall construct public streets adjacent to school
and park sites as depicted in the Specific Plan
regardless of whether said streets are designated as
local or collector streets for a length and to a
standard that includes a curb -to -curb width of between
48 feet and 60 feet as determined at City's sole and
unfettered discretion in order to provide street
parking, bike lanes, and turn lanes in addition to at
least two (2) travel lanes and necessary transitions.
6.14. HCR shall construct appropriately sized water lines,
pumping facilities, and storage facilities for recycled
water consistent with the requirements of the City,
Waterworks District No. 1 and Calleguas Water District.
Said lines shall be installed prior to the final cap
being placed on all streets whether the recycled water
is available or not. HCR shall provide service
including payment of any connection and meter charges
and shall use recycled water for medians and parkways
for all public streets, all golf courses, parks, and
any other public and commonly owned landscaping and
LAX2:203723.6 -16-
recreation areas. The recycled water line(s) shall be
installed for each City approved phase of development
and the recycled water shall be available for use prior
to the first occupancy approval for each City approved
phase of development and prior to occupancy approval
for each golf course.
6.15. Greenbelts, open space areas, landscaped areas, and
trails lying within each portion of the Property (not
covered by any other section) shall be dedicated to
City in a form approved by the City Attorney, or to one
or more homeowners or property owners associations as
determined by the City Council at its sole and
unfettered discretion, as a condition of recordation of
the final subdivision map or parcel map defining the
area within which said areas are located. Greenbelts,
buffers and open space areas may include wetlands,
storm water detention areas, landscaping and decorative
planting areas that do not interfere with greenbelt,
buffer and open space uses as determined by the City at
its sole and unfettered discretion. Such areas not
dedicated to City shall include a conservation easement
granted to the City in a form acceptable to the City
consistent with Civil Code Section 815 et seq.
6.16. Public open space areas consisting of approximately
1700 acres as shown in the Specific Plan shall be
dedicated to an entity approved by the City and HCR;
however, the entity receiving the land must be
structured as a non - profit entity that enables the
dedication of open space land to be transferred in a
manner and schedule that insures HCR receives the
maximum amount of tax benefits per year over the life
of the Project. As a condition of dedication, this
mutually agreed upon non - profit entity shall be
obligated to grant City a conservation easement in a
form acceptable to City consistent with Civil Code
Section 815 et seq. (Messenger has been requested to
provide information on the applicable provisions of the
tax laws related to qualified land conservation trusts
from their tax attorney. The intent is that the City
be given a conservation easement and that no use of the
property except for open space purposes and pre-
LAX2:203723 .6 -17 -
existing mineral rights activities could occur. This
may include a dedication of development rights. We are
seeking to require the transfer in the shortest
possible time [i.e., 10 to 12 years] while maximizing
their tax benefits.)
6.17. The golf course shown in the Specific Plan as planning
unit 40 shall be open to the public to play without the
requirement of membership during all hours of
operation. Twelve (12) hours in the afternoon (12:00
noon to sunset) each week shall be available at
discounted rates for city and school
recreational /educational programs. Discounted rates
shall be offered to seniors and students residing in
the City of Moorpark. The discounted rates shall be
determined by HCR and the eligible programs shall be
determined by city.
HCR shall cause the clubhouse and related facilities on
any gold course to be available to the public for rent.
City shall be granted two (2) free rentals, except for
HCR's out -of- pocket expenses, each year for a City
sponsored activity for the golf course on planning unit
40. The date and number of hours shall be by mutual
agreement; however, the City shall receive a minimum of
eight (8) and maximum of twelve (12) hours of free
rental for each golf course. HCR shall enter into an
agreement with the City guaranteeing the provisions of
the section for a period of ninety -nine (99) years from
City Council approval of this Agreement.
6.18. Prior to the determination of completeness for the
Master Tentative Map or first subdivision, HCR shall
submit an Infrastructure and Financing Program to be
reviewed and approved by the City Council prior to
approval of any tentative subdivision map or any other
development project or entitlement application for the
Specific Plan area. This Program shall include all on-
site and off -site public infrastructure improvements
required for implementation of the Project, including
all parks, trails, circulation, roadways and
intersections, drainage, water, reclaimed water, and
wastewater treatment improvements required for
LAX2 :203723. 6 -is-
implementation of the Specific Plan development,
including the requirements required for each approved
phase of development. HCR agrees to install
improvements required by Specific Plan, Capital
Facilities and Financing Program, and any approved
subdivision map, at such times as deemed necessary by
the City, at the City's sole discretion and authority,
to mitigate project impacts.
6.19. A. HCR agrees to construct three hundred sixty -
five (365) dwelling units within the Specific
Plan area that are affordable to "Very Low" and
"Lower" income households, as defined by the
United States Department of Housing and Urban
Development (HUD) published income levels for
Ventura County.
B. HCR herein agrees to enter into a Regulatory
Agreement with City, for management of the
affordable dwelling units, prior to City
approval of any Residential Planned Development
Permit and /or subdivision map creating
residential lots within the Specific Plan area.
Such Regulatory Agreement shall be consistent
with the agreements herein set forth and shall
also set forth the procedure for City
monitoring of compliance with the affordable
requirements. The Regulatory Agreement shall
be in a form approved by the City in its sole
discretion and shall provide for HCR payment of
City costs to administer said Regulatory
Agreement.
C. The 365 affordable dwelling units (DUs) to be
constructed on HCR property shall consist of
the following unit types:
Product Type DUs
Rental Units - Very Low and Lower 250
Rental Units - Senior 25
For -Sale Units - Very Low and Lower 70
For -Sale Units - Senior 20
LAX2:203723 .6 _19-
Total affordable DUs
365
Senior units shall mean a group of dwelling units
either attached or detached that are rented or sold to
a qualified senior citizen as defined in Section 51.3
of the California Civil Code.
D. The 250 affordable rental units for Very Low and
Lower income households will consist of attached
two and /or three -story apartment units to be
located in approved Planning Units with VH -1 and
VH -2 density categories, as shown on Exhibit 7 of
the Specific Plan, but shall not comprise over 50
percent of the units within a particular planning
unit. One hundred twenty five (125) of the total
250 rental units shall be rented to Very Low income
households and one hundred twenty -five (125) shall
be rented to Lower income households for a minimum
of 40 years from the last building occupancy (final
building permit) approval for each apartment
project. The Very Low income rental units shall
have a minimum of two bedrooms and for income
calculation purposes, a three - person household
shall be assumed for a two - bedroom apartment and a
four - person household shall be assumed for a three -
bedroom apartment. The Lower income rental units
shall have a minimum of three bedrooms and for
income calculation purposes, a four - person
household shall be assumed for a three - bedroom
rental unit and a five - person household shall be
assumed for a four - bedroom rental unit. The
monthly rent shall be calculated by multiplying 30
percent times the annual household income adjusted
for family size, as determined by the number of
bedrooms, and then dividing by twelve (12).
E. The 25 affordable rental units designed for seniors
will be located in the senior housing component of
the project, Planning Unit — on Exhibit 7 of the
Specific Plan, with twelve (12) one - bedroom units
made available for Very Low Income seniors and
thirteen two - bedroom units made available for Lower
income seniors. The monthly rent shall be
LM2 :203723. 6 -20-
calculated by multiplying 30 percent times the
annual household income adjusted for family size as
determined by the number of bedrooms, and then
dividing by twelve (12). A one - person household
shall be assumed for a one - bedroom senior rental
unit and a two - person household shall be assumed
for a two - bedroom senior rental unit.
F. The 70 affordable for -sale dwelling units will be
either single - family detached (e.g., courtyard
homes) or multi - family structures. These units
will be located in any of the M, H, and /or VH -1
density categories shown on Exhibit 7 of the
Specific Plan. A total of 35 of these for -sale
units will be available to families qualifying as
a Very Low Income household and 35 will be
available to families qualifying as a Lower income
household, as defined by HUD for Ventura County.
G. Income qualification for the for -sale units shall
be based upon actual household size.
H. For the 35 Very Low income for -sale units, 18 shall
have a minimum of two bedrooms and 17 shall have a
minimum of three bedrooms.
I. For the 35 Low Income for -sale units, 18 shall have
a minimum of three bedrooms, and 17 shall have a
minimum of four bedrooms.
J. The 20 affordable for -sale senior units shall be
located in the senior housing component in Planning
Unit — . and half shall be made available to Very
Low incme senior households and half shall be made
available to Lower income senior households.
K. The 10 Very Low income for -sale senior units, 18
shall have a minimum of two bedrooms.
L. The 10 Low Income for -sale senior units shall have
a minimum of three bedrooms.
M. All affordable for -sale units shall be sold with an
LAX2:203723.6 -21-
owner - occupancy requirement not to exceed forty
(40) years and equity share in favor of City with
these and other terms to be determined by City in
its sole discretion.
N. Prior to a determination of application
completeness for any Residential Planned
Development Permit and /or subdivision map creating
for -sale residential lots within the Specific Plan
area, HCR shall submit for City Council approval,
a marketing plan for all required affordable for -
sale units. Such marketing plan shall provide
priority for existing residents and persons
employed within the City boundaries for purchase of
the affordable for -sale dwelling units.
HCR and the City agree that the affordable housing
as contemplated herein constitutes certain amounts
of unrecoverable costs to HCR (most notably land
and land improvement costs) . HCR may be able to
reduce the amount of unrecoverable costs by
providing a portion of the Affordable Housing in a
location other than within the project, yet within
the boundaries of the City. City agrees that HCR
may provide a maximum of 100 units of the total 365
affordable dwelling units, not to exceed 35 of the
for -sale units. The same requirements as are
described herein above for the required number of
Very Low income and Lower income units are
applicable; 50 percent shall be affordable to Very
Low income and 50 percent shall be affordable to
Lower income. Should HCR elect to construct a
portion of the affordable units off -site, HCR
agrees to increase the total number of affordable
units by one (1) unit for every five (5) affordable
dwelling units constructed off -site. (For example,
should HCR desire to locate 100 of the affordable
dwelling units off -site, the total affordable units
required of HCR per this Agreement would be
increased by 20 units from 365 to 385) . In any
event, the total number of dwelling units
designated within the Specific Plan shall remain
3,221 units.
LAX2:203723.6 -22-
HCR agrees to construct the affordable dwelling
units on the following timetable:
• Prior to the issuance of the 1,0018t residential
building permit, at least 100 affordable units
as described herein will have received a Final
Building Permit /Notice of Completion.
• Prior to the issuance of the 2,201at residential
building permit, at least 225 affordable units
as described herein will have received a Final
Building Permit /Notice of Completion.
• Prior to the issuance of the 3,0018t residential
building permit, all 365 affordable units, or
greater amount as determined by other
provisions herein above described, will have
received a Final Building Permit /Notice of
Completion.
HCR agrees that a requirement for application
completeness for each Master Tentative Map and
tentative tract map is that the number of
affordable dwelling units, location (by lot
number), sizes (including bedrooms), types of
affordable dwelling units (rental, for -sale, senior
rental, and /or senior for - sale), and the applicable
household income categories for such units (Very
Low and Lower income) shall be provided to the City
for the area covered by the subdivision map, and
the City shall impose such conditions of approval
on the subdivision map that are required to ensure
the provision of the affordable dwelling units and
the execution of a Regulatory Agreement to ensure
compliance with affordable requirements.
The City agrees to appoint an affordable housing
staff person to oversee the implementation of the
affordable housing requirements for the Specific
Plan and compliance with the Regulatory Agreement
required herein, conditioned upon the full funding
of the staff time by HCR, based on the City's
adopted fee schedule for staff and contract staff.
The responsibilities of the staff person will
include, but not be limited to, assisting with the
planning, permitting, and construction of the
LAX2 :203723. 6 -23-
affordable dwelling units, together with the
responsibility for qualifying those families that
wish to purchase a for -sale affordable dwelling
unit or overseeing the work of a consultant that is
hired by the City, and funded by HCR, to perform
income qualification review for such units. The
City shall not be responsible for income
qualification for affordable rental units; however,
the Regulatory Agreement shall specify the
requirements for compliance and monitoring.
6.20. The Mitigation Measures included in the City Council
approved Final Environmental Impact Report (EIR) and
Mitigation Monitoring Program, or subsequent
environmental clearance document approved by the
Council and agreed to by HCR, set forth the mitigation
requirements. Air quality and traffic mitigation fees,
referenced but not specifically calculated in the EIR
and Mitigation Monitoring Program, are agreed to as
follows:
A. Air Ouality.
B. Traffic Mitigation.
6.21. Conditional upon the City Council approval of a roadway
connection between Specific Plan No. 8 and a Spring
Road extension, HCR agrees to fund its fair share of
intersection and roadway improvements within Specific
Plan No. 2 to accommodate additional traffic, and its
fair share of a new wall to attenuate noise and
landscaping screening along the west side of Spring
Road between High Street and Los Angeles Avenue.
Payment of fair share improvements by HCR shall be made
prior to final map approval for the phase of
development that requires the roadway connection to the
Spring Road extension.
6.22. HCR shall install wrought iron fencing and landscaping
screening along the west and north sides of Paul
Griffin Park, along Collins Drive and Campus Park
Drive. Such wrought iron fencing shall be the same
quality as the fencing installed in Tierra Rejada Park
LAX2 : 2 03723. 6 -24-
and the landscape and fencing plans shall be approved
by the Director of Community Development. Installation
of the wall and landscaping shall occur prior to the
first final building permit /occupancy approval for
Phase 1 of the Specific Plan development.
7. City Agreements.
7.1. Processing of Phase 1 Subsequent Approvals. City shall
commit the necessary time and resources of City staff to work
with HCR on the expedited and parallel processing of
applications for Subsequent Approvals for Phase 1 of the
Project, as shown on , and shall use overtime and
independent contractors whenever possible. HCR shall assume
any risk related to, and shall pay the additional costs
incurred by City for, the expedited and parallel processing.
8. Supersession of Agreement by Change of Law. In the event that
any state or federal law or regulation enacted after the date
the Enabling Ordinance was adopted by the City Council
prevents or precludes compliance with any provision of the
Agreement, such provision shall be deemed modified or
suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by Developers with the provisions of this
Agreement, the Agreement shall be reviewed annually in
accordance with Moorpark Municipal Code chapter 15.40. 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 breach of this Agreement by City,
diminish, impede, or abrogate the obligations of Developers
hereunder or render this Agreement invalid or void.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, shall be
excused during any period of "Excusable Delay ", as hereinafter
defined, provided that the Party claiming the delay gives
notice of the delay to the other Parties as soon as possible
after the same has been ascertained. For purposes hereof,
Excusable Delay shall mean delay that directly affects, and
is beyond the reasonable control of, the Party claiming the
LAX2:203723.6 -25-
11
delay, including without limitation: (a) act of God; (b) civil
commotion; (c) riot; (d) strike, picketing or other labor
dispute; (e) shortage of materials or supplies; (e) damage to
work in progress by reason of fire, flood, earthquake or other
casualty; (f) failure, delay or inability of City to provide
adequate levels of public services, facilities or
infrastructure to the Property including, by way of example
only, the lack of water to serve any portion of the Property
due to drought; (g) delay caused by a restriction imposed or
mandated by a governmental entity other than City; or (h)
litigation brought by a third party attacking the validity of
this Agreement, a Project Approval, a Subsequent Approval or
any other action necessary for development of the Property.
11.1. Default by Developer. No Developer shall be deemed to
have breached this Agreement as a result of a default
by any other Developer, but any Developer shall be
deemed in breach if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or
(b) willfully violates any order, ruling or decision of
any regulatory or judicial body having jurisdiction over
the Property or the Project, provided that Developer may
contest any such order, ruling or decision by appropriate
proceedings conducted in good faith, in which event no
breach of this Agreement shall be deemed to have occurred
unless and until there is a final adjudication adverse
to Developer; or
(c) fails to make any payments required under this
Agreement; or
(d) materially breaches any of the provisions of the
Agreement and the same is not cured within the time set
forth in a written notice of violation from City to
Developer, which period of time shall not be less than
ten (10) days from the date that the notice is deemed
received, provided if Developer cannot reasonably cure
the breach within the time set forth in the notice,
LAX2:203723.6 -26-
Developer fails to commence to cure the breach within
such time limit and diligently effect such cure
thereafter.
11.2. Default by City. City shall be deemed in breach of
this Agreement if it:
(a) materially breaches any of the provisions of the
Agreement and the same is not cure within the time set
forth in a written notice of violation from Developer to
City, which period shall not be less than ten (10) days
from the date the notice is deemed received, provided if
City cannot reasonably cure the breach within the time
set forth in the notice, City fails to commence to cure
the breach within such time limit and diligently effect
such cure thereafter.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this section of the Agreement, the nature
of the alleged breach, and the manner in which the
breach may be satisfactorily cured. The notice shall
be deemed given on the date that it is personally
delivered or on the date that it is deposited in the
United States mail, in accordance with section _
hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection.
The remedies for breach of the Agreement by City shall
be injunctive relief and /or specific performance.
LAX2:203723.6 -27-
The remedies for breach of the Agreement by a Developer
shall be injunctive relief and /or specific performance.
In addition, and notwithstanding subsection 11.5, if
the breach is of subsection (parks) or subsection
(affordable housing) of this Agreement, City shall
have the right to withhold the issuance of building
permits to all Developers throughout the Project area
from the date that the notice of violation was given
pursuant to subsection 11.2 hereof until the date that
the breach is cured as provided in the notice of
violation.
Nothing in this subsection shall be deemed to preclude
City from prosecuting a criminal action against any
Developer who violates any City ordinance or state
statute.
11.5. Violation Limited To Developer in Breach. No breach
hereunder by a Developer shall constitute a breach
applicable to any other Developer, and any remedy
arising by reason of such breach shall be applicable
solely to the Developer that committed the breach. Any
liability arising by reason of such breach shall be the
liability and obligation solely of the Developer that
committed the breach.
11.6. Copies of Notices of Violation. At the time that City
gives a notice of violation to a Developer, City shall
send a copy of the notice to every other Developer who
has made a prior written request to receive notices of
violation, provided that the request states the name
and mailing address of the requester and the request
makes specific reference to this section. The copies
shall be sent by first class United States mail.
12. Mortgage Protection. At the same time that City gives notice
to any Developer of a breach by that Developer, City shall
send a copy of the notice to each holder of record of any deed
of trust on the portion of the Property in which Developer has
a legal interest ( "Financier ") , provided that the Financier
has given prior written notice of its name and mailing address
to City and the notice makes specific reference to this
section. The copies shall be sent by United States mail,
LA%2:203723.6 -28-
registered or certified, postage prepaid, return receipt
requested, and shall be deemed received upon the third (3rd)
day after deposit.
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 gives 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. City shall not commence legal action
against Developer 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 every owner
of the Property, or part thereof, whose title thereto is
acquired by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time, any
Developer may deliver written notice to City and City may
deliver written notice to any Developer 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 identity
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 such a request shall
execute and return the certificate within thirty (30) days
following receipt of the notice. City acknowledges that a
certificate may be relied upon by successors in interest to
the Developer who requested the certificate and by holders of
record of deeds of trust on the portion of the Property in
which that Developer has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
LAX2:203723.6 -29-
herewith may be appealed by the affected Developer to the City
Council, provided that any such appeal shall be filed with the
City Clerk of City within ten (10) days after the affected
Developer receives notice 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. The affected Developer shall not seek judicial
review of any staff decision without first having exhausted
its remedies pursuant to this section.
15. 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, as to any
Developer by mutual consent of City and the affected
Developer. No amendment shall provide benefits to any
Developer on terms more favorable than those provided to HCR
by the Project Approvals or this Agreement.
15.1. Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indemnification. Each 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, that Developer's performance pursuant to this
Agreement.
HCR shall indemnify, defend with counsel approved by City, and
hold harmless City and its officers, employees and agents from
and against any action or proceeding to attack, review, set
aside, void or annul this Agreement or any provision thereof.
17. Time of Essence. Time is of the essence for each provision
of this Agreement of which time is an element.
LAX2 : 203723. 6 -30-
18. Operative Date. This Agreement shall become operative on the
date that the Property is annexed to City, provided that if
annexation of the Property to City is not completed on or
before 1998, the Agreement shall be deemed null
and void.
19. Term. This Agreement shall remain in full force and effect
for a term of thirty (30) years commencing on its operative
date or until the close of escrow on the initial sale of the
last Affordable Housing Unit, whichever occurs last, unless
said term is amended or the Agreement is sooner terminated as
otherwise provided herein.
Expiration of the term or earlier termination of this
Agreement shall not automatically affect any Project Approval
or Subsequent Approval that has been granted or any right or
obligation arising independently from such Project Approval
or Subsequent Approval.
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document reasonably
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
received 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
Parties at the addresses set forth in Exhibit "D" attached
hereto and incorporated herein.
Any 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.
21. 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.
LAX2:203723.6 - 3 1-
22. 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.
23. 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.
24. Relationship of the Parties. Each Party acknowledges that,
in entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of any of
the other Parties in any respect. Nothing contained herein
or in any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature
between City and Developers, jointly or severally.
25. 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.
26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder 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.
27. cooperation Between City and Developers. City and each
Developer 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.
28. 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
LAX2:203723.6 -32-
a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in conflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail. Should any provision of the
Infrastructure and Financing Plan be found to be in conflict
with any provision of this Agreement, the provisions of the
Infrastructure and Financing Plan shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. 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.
31. 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.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
LAX2 :203723.6 -33-
EXHIBIT "C"
RECORDING REQUESTED BY:
City Clerk, City of Moorpark
WHEN RECORDED MAIL TO:
City Clerk, City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
COVENANT RUNNING WITH THE LAND
THIS COVENANT is made this day of , by and
between Hidden Creek Ranch, L.P., a California Limited Partnership,
( "HCR") and the City of Moorpark, a municipal corporation ( "City ").
WHEREAS, HCR is the owner of certain real property in the City
of Moorpark, County of Ventura, legally described as Lot _ of
Tract No. ( "the HCR Property "); and
WHEREAS, City is the owner of certain real property in the
City of Moorpark, County of Ventura, legally described as
( "the City Property "); and
WHEREAS, HCR and City are parties to that certain Development
Agreement recorded in the office of the County Recorder of the
County of Ventura as Instrument No. ( "the
Development Agreement "); and
WHEREAS, pursuant to the Development Agreement, HCR agreed to
restrict the use of the HCR Property to certain uses and to
transfer all other development rights to the City Property and to
LAX2:203723.6 -34-
record a document to that effect as a condition of approval of the
final map for Tract No. ;
NOW, THEREFORE, in consideration of the mutual promises of the
parties to this Covenant, each to the other as covenantor and
covenantee, and expressly for the benefit of, and to bind, their
successors in interest, the parties agree as follow:
1. The HCR Property shall be used for the following purposes
only:
public school facilities, kindergarten through 12th grade
2. All uses not specified in Paragraph 1 hereof are
hereby deemed transferred from the HCR Property to the City
Property for the benefit of the City Property.
3. From time to time, and at any time, City may
substitute any other property owned by City on the date of the
substitution for the City Property ( "the Substitute Property ")
without the consent of HCR by the recordation of an amendment to
this Covenant in the office of the County Recorder of the County
of Ventura. The amendment shall describe the Substitute Property
and shall provide that, commencing on the date of recordation of
the amendment, all uses not specified in Paragraph 2 hereof shall
be deemed transferred from the City Property to the Substitute
Property for the benefit of the Substitute Property.
4. All of the covenants, restrictions, and limitations
set forth herein shall run with the HCR Property and the City
Property and shall benefit and bind all persons, whether natural
or legal, having or acquiring any right, title, or interest in
any portion of the HCR Property or the City Property. Each
grantee of a conveyance or purchaser under a contract of sale or
similar instrument that covers any right, title, or interest in
or to any portion of the HCR Property or the City Property, by
accepting a deed or a contract of sale or similar instrument,
accepts the conveyance or sale subject to, and agrees to be bound
and benefitted by, all of the covenants, restrictions and
limitations set forth herein.
S. This Covenant may be enforced by proceedings at law or
in equity against any person who violates or attempts to violate
LAX2:203723.6 -35-
an covenant, restriction or limitation hereof. The prevailing
party shall be entitled to recover such attorneys' fees and court
costs as it reasonably incurs in such a proceeding.
6. In the event any provision of this Covenant is found
to be invalid or unenforceable in any proceeding at law or in
equity, such finding shall not affect the other provisions of
this Covenant, which shall remain in full force and effect.
IN WITNESS WHEREOF, Hidden Creek Ranch, L.P. and City of
Moorpark have executed this Covenant on the date first above
written
HIDDEN CREEK RANCH, L.P. CITY OF MOORPARK
Patrick Hunter
Mayor
LAX2 : 203723. 6 -36-
EXHIBIT "D"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To HCR:
Hidden Creek Ranch, L.P.
c/o Messenger Investment Company
959 South Coast Drive, Suite 490
Costa Mesa, CA 92626
Attn: William S. Messenger, Jr.
LAX2 : 203723. 6 -37-