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HomeMy WebLinkAboutAGENDA REPORT 1998 0520 CC REG ITEM 10DAGENDA REPORT CITY OF MOORPARK TO: The Honorable City Council FROM: Steven Kueny, City Manager DATE: May 15, 1998 (CC Meeting of May 20, `7ra.4(6) ITEM 109DO CITY OF MOORPARK, CALIFORNIA City Council Meeting Of 5. 2.0 •gS ACTION: ha roved rev. s.d s} afF recommendofion +i> 4irect annrn9 omr, 5410,1 to �rocea BY: P '0 ear n9 on e e opMen 1998) X. pqZ, SUBJECT: Status Report on Proposed Development Agreement for Specific Plan No. 8 / Hidden Creek Ranch (Messenger) The Ad Hoc Committee (Councilmembers Perez and Wozniak) and staff have completed its meetings with representatives of Messenger Investments on the proposed language of the Development Agreement. The changes from the draft presented at the May 6, 1998, Council meeting (draft dated 5- 01 -98) are shown in legislative format. The Committee and staff are prepared to address questions and recommend that the proposed Development Agreement be forwarded to the Planning Commission for public hearing. STAFF RECOMMENDATION: Consider report from Ad Hoc Committee and continue to June 3, 1998. SK:db Attachment: Development Agreement dated 5 -14 -98 m: \ccagenda \hcragr5.98 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 203723.7mp DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND OWNERS OF LAND WITHIN HIDDEN CREEK SPECIFIC PLAN NO. 8 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 203723.7mp 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 !aj 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" 203723 . 7mp - 1- attached hereto and incorporated herein. Hidden Creek Ranch, L.P. ( "HCR") is a Developer that owns approximately 4_.;00 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 prppoed' be 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 commenced a 1998, the Planning Commission of City duly noticed public hearing on this 203723.7mp - 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 Transfer. 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 203723 .7mp - 3 - 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. 4. 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. 203723.7mp - 4 - -- • • �- - •N11711 �. • 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 Circulation, Phasing, Financi E Prograei .('Infrastructure and Finaneing Plan) , as described in section 6.1,;'8 hereof. 5.2. Amendment of Project 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 203723.7mp - 5 - Developer on terms more favorable than those provided to HCR by the Project Approvals or this Agreement. 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 203723 . 7mp -6- of all or any part of the Project in any manner, provided that all infrastructure required by the Infrastructure and F: nave: ng -Plan to serve the portion 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 al'ataued planning units acrd -- of SP 93 1, ��Ce 1,- Planning;• Unit 448. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire ten::,,1Q)' 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. 203723.7mp - 7 - 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 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 Finaneing—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 203723 . 7mp - 8 - 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, 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. ■_ 6.1. General 9bligatiens. 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. 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. 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 203723. Imp - 9 - intended purpose, as reasonably determined by City. 6.4. As a condition of the issuance of a building permit for each gq�r, 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 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, gc�1f "} eOUrpe 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 each apprcavd ;god iQUse and 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 after the first residential building permit is issued within the 203723 .Imp _10- 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). 6.6. As a condition of the issuance of a building permit for each residential,ofpae,, 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, SP t, Twc. Thousand`' Dollars ($72,000.00),,:per each approved golf: course 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 State :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 (exacent °far the three °hundred sixty 203723.7mp - 11 - 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, Ei5hty T_WQ Thousand Six,Hundred Dollars ($8Z�.50Q.00),per each approved golf course, 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, and twenty- seventh anniversaries of the operative date of this Agreement. The adjestment shall be the average 3 ierease— ezF--the median heme - pr±ee- iirVentei-a Geenty fer part', of the Infras ctuxe`.Plan, 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 203723 . 7mp -12 - 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. T, ming, €= -or recordation t, the conservation easement shall be . ncl ded - =in the Infrastructure Plan. 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 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; 203723.7mp -13 - 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 structure 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 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. 203723 . 7mp -14 - SMIN 203723 . 7mp -14 - 203723 .7mp —15 — sma ON ME-V 203723 .7mp —15 — - -- - ._ - - -- - - -- - -- - - ep 203723 .7mp —15 — which :rss�x l ncreassi 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.). The a$ .c�e�,e [n r ci py ins ci ty at.lts. so.�� d,1s ret on. 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 sPepi-x d numbex of dwelling units within the :m.. _. boundaries of the Specific Plan 4s,,pzovided f,or .in the mapnaha tie' par]c $ s ;14cted t; After each park is opened to the public and prior to its formal acceptance by City, HCR shall provide a minimum of one years -s sn&i a ma:X1ww €�f'tWC y ars,01 maintenance for the 203723. Imp -16 - 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 shall be deemed to satisfy the "Quimby" requirement set forth at California Government Code Section 66477 €t seer. 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 one --temt of e3eisting Ghapter 203723 . 7mp -17- incre 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 recreation areas. The recycled water line(s) shall be installed for each City approved phase of development and the recycled water shall be available zer in use prior to the first occupancy approval for each City approved phase of development and prior to occupancy approval for each golf course, ifM;sugh recyq ed water 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 203723 . 7mp - 18 - 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 —�� eledieated s �oposed by $HCR -to be `granted, by deed to an entity approved by the City and HCR; however, the entity receiving the land must be structured as a nee — 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 nef pr f_t Entity shall be obligated to grant City a conservation easement in a form acceptable to City consistent with Civil Code Section 815 et seq., er ;A,,th'e:.avent,HCR -has Section,, 87.5:: et seq,: 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. 203723. Imp -19- 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. facili.t e's,. and - services, as well f; as all affordable housing. units; parks, trails, circulation, roadways and intersections, drainage, water, reelaimeel--- recycled water, and wastewater treatment improvements required for implementation of the Specific Plan development, including the requirements required for each approved phase of development. The, 'Infrastructure Plan shall 203723.7mp -20- 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 Uec Statee Department of Housing and Commun�ty U-i-� Development (4CDH4D) 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 for the 'dt�rat�on:.`caf .the'egul:atory C. The 365 affordable dwelling units (DUs) to be constructed on HCR property shall consist of the following unit types: Rental Units - Very Low and Lower 250 Rental Units - Senior 25 203723.7mp - 2 1- �YilFlNil ��ilY�Mif[i5Y1T 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 Uec Statee Department of Housing and Commun�ty U-i-� Development (4CDH4D) 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 for the 'dt�rat�on:.`caf .the'egul:atory C. The 365 affordable dwelling units (DUs) to be constructed on HCR property shall consist of the following unit types: Rental Units - Very Low and Lower 250 Rental Units - Senior 25 203723.7mp - 2 1- For -Sale Units - Very Low and Lower 70 For -Sale Units - Senior 20 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. The, ,,number ; cf:I'or, -Sale, Units can;be. increased as mutually 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 fif ty percent (50 -) of the units within a particular planning unit. The City ,Counc,,, may 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 ealettlated by X34 203723.7mp -22- pereent times the annual hetiseheld ineeme adjusted fer family size, 9 eletermi-ired by the number- of bedreefas, and theme --dividing by t„el=e-- 42) 0 congistent °;with the ;requirement of 'HCD. 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 annual heuseheld it-e-me adjusted fer family size a& dividing by twelve 4 09 sistent, with . thy? re quirements;aof ICD. 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 HCDHUD 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. 203723. 7mp -23- 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 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 203723.7mp -24- 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. HCR agrees to construct the affordable dwelling units on the following timetable: • Prior to the issuance of the 1,001st 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 2,20180 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 3,001"t 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 203723. Imp -25- the provision of the affordable dwelling units and the execution of a Regulatory Agreement to ensure compliance with affordable requirements. Plan anel --- eemplianee -w with the Regulatary Agreement ent ef: the staff- time by HGR, based en the Gity"a l r �r ed fee -s ehedule -f e r staff and -entra et- staff_ HCR agrees to fully fund City Staff necessary to implement the affordable < housing requirements and insure compliance with the Regulatory Agreement and subsections 6.19, and 7`.11. of this Agreement. The responsibilities of the staff person will include, but not be limited to, assisting with the planning, permitting, and construction of the 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. HCR agrees ;that 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 te by HGR, set forth the mitigation requirements for ;air'quaility impacts. HCR further agrees that air quality fees, referenced but not specifically calculated in the EIR and Mitigation Monitoring Program, are agreed totes ms= be .calcul °ated" as; aa. condition of the issuance of a building', permit :for each residential, commercial, golf course " an& institutional use within the boundariew of, they Speci'figc ,. -Plan-. HCR also agrees to pay to'City an.air quality mitigation fee, as ,described 203723 . 7mp - 2 6- herein (the Air Quality Fee) in satisfaction of the Transportation Demand Management Fund mitigation requirement in the Final Environmental Impact Report (EIR) for the Specific Plan The Air Quality Fee may be expended by City, in its -tsole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. (On the operative date of this Agreement, the amount of the Air Quality Fee shall be $760 per dwelling unit, $32,000 per gross acre of commercial or institutional land, and $140,504 for each golf course.) For residential projects, the Air Quality Fee shall be the same for all dwelling units 'approved as part of a Residential'Planned Development (RPD) Permit and shall be calculated by the Community Development Department prior to issuance of a.- Zoning Clearance for the - first building plan check for the RPD development. For commercial, institutional, and; golf course projects-, the Air,,,,­,, Quality Fee shall :beA calculated by.; the Community Development Department prior to the first occupancy approval ',",for each planned development project. The Air Quality -.Fee shall be calculated at the times specified in�thiss` paragraph using the City's approve& model HCR` s agreement to pay- ,the Air Quality Fee shall be considered equivalent _-mitigation for air quality impacts ,and, 'therefore, shall:` relieve HCR of the following 'a:ir .quality miti,gAt�gn obligations, that are included in the ..List .of Mit- gat on Measures in the Final Environmental Impact'�AReport� 'which, mitigation measures .would ;;otherwise result rin.: `a reduction of the fee: ., _ .:: _._ Priors to occupancy of the I,300`�' residential unit, clean -fuel or electric hybrid school buses should be purchased and maintained,,,by the project applicant, to transport.: - elementary and middle school-, students:,, at Hidden Creek Ranch. Prior-,to occupancy of, the 800 .residential unit, an onsite park, and_ ride ,lot ehall° be constructed, by 203723. Imp -27- the project applicant, to promote car pooling. • Prior to occupancy of the 1, 100th residential unit, the project applicant shall establish or fund a shuttle, service from the, onsite residential areas to downtown commercial, areas and Metrolink station in the.City'of Moorpark. • Prior to occupancy of the 2 000th residential unit, a telecommuting and video conference facility shall be provided in the,community commercial center by the master developer. • Prior to issuance of ,a zoning clearance for nonresidential projects,,. the project applicant shall make a contribution to a Moorpark Traf €ic Systems Management (TSM ):Fund of $0.15 per square foot of _floor = =area to . � -fund traffic systems _. management= programs !-toy ll reduce, emissions' from transportation sources. (Note To be. used if the applicant does not gay the City's TDM Fund fee, that/ is based on'the Ventura County Air Pollution Control District's formula. }° 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 fe4rrpro -rata share of intersection and roadway improvements within Specific Plan No. 2 to accommodate additional traffic, and its 4a4-rprq Xata 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 fairfor the,pro -rata 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 and may be in the form. o.€ . a , reimbursement .,.payment inclusive of interest payments; to the;'owtters,.of Specific Plan No. 2 or others and City.Adminstrative costs. 203723. Imp -28- 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 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. HCR shall also replace in kind, or in cash, as determined by City in its sole discretion, all par} improvements removed as a result of the widening of Collins Drive and Campus Park Drive required by the EIR;. , mitigation measures, Project Approvals or Subsequent Approvals. 6.23. Prior to the submittal, of, an application for any subdivision,,. or . any, other development project or entitlement. appl- ,cation,: , HCR -- shal'1. ` -submit and gain approval from City Council a' -plan to .guarantee the agreements contained in subsections 6.11 and 6.19 The glan,shall. address the-- entit.es;responsihle and method and timing of guarantee -for each component of HCR's obligations,and is subject.,to C,tlr approval at its sole ,�� discretion 6.24. HCR agrees to pay all costs'.,ncurred by City to collect any and all fees including but not limited to legal services and City staff time -from other property owners within:Specfic:Plan Na. 8 for the ;costs of preparation and .processing of .the Specific "Plan and related Environt,,ental Impact Report }a Caty-.'-,As not obligated to remit =fees collected from others until such time as HCR has reimbursed.', City for its colt ° ection - costs. 6.25. HCR shale dedicate :to' the Ventura County Fire Prot .ection.District = (Fire,Protection District) .a fire station;' site within the, ,Project ",at ,,a, location mutually agreed:upon by the�City and- �F�re,I?rotection District. The site shall be a - minimum of'one (1);and a maximum of two (2) acres. I The land _shall, be, deed restricted in the farm of a covenant running, with the land, as set forth in Exhibit W attached hereto and incorporated 203723.7mp -29- herein, to -limit use of the land =toga fire station, and the covenant shall be recorded in the offices of the County Recorder of ,the-,,,Co unty of Ventura concurrently with the deed. " transferring fee; -t tle to the Fire Protection District, 6.26. HCR agrees'at its sole cost to install traffic signals at any intersection within the Project as determined by the City in its sole discretion. Final design, plans and specifications shall be as approved by the City Council. HCR shall also pay City's costs for plan check and - inspection plus City administrative costs. 6.27. Each Developer hereby waives any right that it may have under California Government,, Code Section 65915 et. seq., or any successor thereto, or any other provision of Federal, State, or° City laws, or regulations for application or use of „any ,density, bonus that would increase the number of ;Awe .,, unit -s approved " to be constructed in Sped f c�tan IJo.g 6.28. HCR shall,, di1"igentl; process s" :at its sole cost and expense, an `application. for,°!expans ion, of the City's Sphere of Influence and" ":annexation of the property encompassed by the Specific Plan to. the City of Moorpark:: 6.29. If approved �as,part of the. Specific Plan, HCR shall diligently Qursue and process,s;at its sole cost and ;�_ expense,,;a l necessa^r apl cations, and approvals ���. . required from theountyottientura to construct the Sprang = Road Connector across Hapr damp Canyon Park 6.30 HCR:a rte, that jno,{ ;l- i�ng�ahal be constructed within eight�xncred ` "f 80Q} f {eet of�an.uexa.ting oil /gas ;. well, or, pro o$ d drilling s ;te, unless HCR: records with the title to the property a statements acceptable to the City Aoney acknowledgi.ngthe presence of` a well or drilling site and ,the fact thatopexations associated therewith =may I - disturb '1fut1" .occupants, even though said operations are being.conducted An accordance with specific permit conditions._ I�,'shall also cause said notice to-be recorded on; each lot of ;any subdivision of 203723.7mp -30- such property and the buyer of the property to sign an acknowledgment of this statement. In= no,case shall a dwelling;be constructed closer than one hundred (100) feet to the well sites 6.31. HCR agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting and.if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. HCR further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of ,parkway and median landscaping, street lighting, and if requested by the :,City Council, parks in the event the aforementioned assessment district is dissolved or altered. in any, way or; assessments are reduced or limited in any way by'a. ballot election of property owners, or,,if the assessment- district:is invalidated by court: action. 6.33. In addition 'to'% fees specifically.: mentioned in this Agreement, HCR agrees to :all City capital improvement,. development, and processing fees at the rate and,, amount. in effect at:_,the :time the fee is required to bea_ paid. ;Said feesxnclude but „are not limited,-. olice Facilit -lea Fees, Fire: facilities Fees, entitlement processing fees,=: >and °plan check and permit - fees;'for- buildings, and, public improvements. HCR further:<agrees that unless specifically exempted by this - Agreement, # is.esubject to_all fees imposed by City', at the operative date of thzs'Agreement and such futu:F imposed, as determined --by City in its sole discretion._ so- :long , as said €ee is""imposed on similarly stuated,�groperties 6.34. , HCR agrees that the4znfrastructure,Plan shall contain a provision obligating HCA: for the long term maintenance of° streets -,that area used by construction vehicles., 6.35. HCR shall form -one or more property owner associations 203723.7mp - 3 1- to assume ownership and maintenance -of =open space land, trails =_and other amenities., The obligation of said property -owner associations shal`1 be more specifically defined in the Infrastructure Plan. 7. City Agreements. 7.1. Preeessiea e€ Phase—+ S„beeeF „ent 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. 7.2. As authorized'. by- 'Government °:Code. Section .65456,, City a agrees to impose,�Ja'. ,,fee:.upon- bother properties- within , -:the Specific Plan,,. not :owned by FICR, : on a_ p o ;rata basis for the costs of preparation °and- .processing of the, Specific Plan and related Environmental - Impact - Report.: The. pro -rata basis - ,shall be the number of approved: dwelling;� units .',for each property owner dividediiby, the total`: number 2 dwe"9 ing units approved within the Specific Plan. Cz try ei1k 4.mburse HCR, and such fees collected from other> pro�townra for the -cost of preparation and processing ° ;of °:tie Specif.le: Plan and Environmental Impact Report:wzth�n th�rtYt.(30) days of receipt of such fees, and upon reimbursement by-, HCR;- to- City for all costs of collection as provide dMf ©r nsubsection 6.24 of this Agreement. 7.3. City agrees.�,that upon; receipt of .a: landowners' petition by HCR and HCR• s xpayment of a ,fee, app , California in California Government Code Sects on <53318, C�.y$a,l ,commence proceedings to form a Mel3Rs Community?a,l,e$ -District. { "District "? and to �.nc� d;d indebtedne�%nance ,,all -or - portions of the puk�lt�es, infraat�cucturand, services that are required - Sp ific- �Planrn -ands =that may be provided pursuant": tcx t hello- ;Roos Communa ty Facilities Act of 1982 (the 'Act") f provided, °however, yth CityR Council, in its sole and unfettered di'scretion,' may - abandon, establishment of the District upon the`,conclusion,of tho public,,hearing required by California < Government- Code =Sect ^on 331:; and /or deem it unnecessary to'-incur--bonded indebtedness at xthe.conclusion of 203723 .Imp -32- the hearing required by California Government Code Section 53345. In the event that a District is formed, the special tax levied against any residential lot or residence thereon shall afford the buyer the option to prepay the special tax in full prior: to the close of,_.escrow;;on the initial sale of the developed lot-by the builder of.the residence. 7.4 If requested in writing by HCR and limited to City's legal authority, City shall proceed to acquire, at HCR's sole cost and expense,_ easements or fee title to land in which HCR does not have title or interest in order to allow construction of public improvements required of HCR which are outside City's legal boundaries. The process shall generally follow Government Code Section 66457 et seq. and shall include the obligation of HCR 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- pooket- ,costs -and City staff,',costs. 7.5. The City Manager As authorized to ,sign an early grading agreement on behalf of -City to allow rough grading of Phase I of the : Project, prior to City- , Council approval of a f inal subdivision map.', Said early grading< agreement 'shall be consistent with the conditions ofd the .Specific Plan and approved tentative map and contingent -:'on City Engineer and Director of Community.Development acceptance of .a Performance Bond in a .form and t amount satisfactory to them to .guarantee implementation;of the erosion control plan and completion of the rough grading; construction of .on -site and off -site improvements:: consistent, with the- City- Council approved Infrastructure Plan. In the case. of failure to comply with the terms- anc"!R itions of the:early. grading agreement, the City Counq l�-ma resolution declare= ;the, - surety forfeited. 7.6 City „y agrleea�.'that 'HCR i$' exempt from the payment of Los Angeles °Avenue areazof_ contribution (AOC) fees. 7.7 City agrees Ghat whenever possible %as determined by City in its sole discretion to process,- concurrently all,land use entitlements :for.,the same property so.. long as said entitlements are deeme&'complete, 203723. Imp -33- 7.8 City agrees to sell to HCR at fair market value the portion of- Griffen Park necessary to widen Collins Drive and Campus Park Drive consistent with approval of the Specific Plan, EIR. mitigation measures, Project Approvals and Subsequent Approvals. 7.9. City agrees that the land and improvements required under subsection 6.11. of this Agreement meets HCR's obligation for park land dedication under applicable provisions of state law and City codes. 7.10. City agrees to cooperate.-with HCR consistent with subsection 6.16. Of this Agreement to allow,�HCR to receive the maximum amount of tax benefits for the dedication of public open space. 7.11. The City, agrees to appoint,,,an ;affordable housing staff person to oversee the implementation of t,t ''affordable housing requirements for the Specific'Plan`:and compliance with the Regulatory Agreement required herein ;for'the duration such units are required.,ta be,mainta�ned asfordable, contingent upon the fully funding, ;of '!the safd�tme�by HCR�; based on the City's adopted fee : schedule ,for.,, staff nand: contract staff as required by subsection 6..,19: of >this Agreement. 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. 203723.7mp -34- 10. Authorized Delay-a. 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 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. �- - MPILMIZ 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 203723. Imp -35- (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, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by Citx. 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 203723.7mp -36- 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. 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 Prgtection. At the same time that City gives notice to any Developer of a breach by that Developer, City shall 203723 . 7mp -37- 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, 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 203723.7mp -38- 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 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 203723. Imp -39- 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. 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. 203723.7mp -40- 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. 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 203723.7mp -41- 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 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. 203723.7mp -42- 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 203723.7mp -43- 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. 5. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate 203723.7mp -44- 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 203723 . 7mp -45- 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. 203723.7mp -46-