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HomeMy WebLinkAboutAGENDA REPORT 1998 0701 CC REG ITEM 09B7i9 , q (() ITEM q • 00 CITE' OF MOORPARK, CALIFORNIA AGENDA REPORT City Council Meeting CITY OF MOORPARK of - ( - nh& ACTION: TO: Honorable City Council c� " FROM: Nelson Miller, Director of Community Developme BY: ' ET DATE: June 24, 1998 (City Council Meeting of July 1, 1998) SUBJECT: CONSIDER PROPOSED DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND HIDDEN CREEK RANCH, L.P., OWNERS OF LAND WITHIN HIDDEN CREEK RANCH SPECIFIC PLAN NO. 8 (DEVELOPMENT AGREEMENT NO. 96-2) CONTINUED FROM JUNE 17, 1998. DISCUSSION At the meeting of June 17, 1998, the City Council continued the consideration of the proposed Development Agreement to July 1, 1998 with the public hearing open. Chapter 15.40 of the Municipal Code sets forth the processing requirements for Development Agreements. A draft Development Agreement between the City and owners of land within the Hidden Creek Ranch Specific Plan was prepared with the involvement of a City Council appointed Ad Hoc Committee consisting of Councilmembers Perez and Wozniak. At its May 20, 1998, regular meeting, the City Council considered the report from the Ad Hoc Committee and a draft Development Agreement and directed review by the Planning Commission of the Development Agreement. The Planning Commission held public hearings on the proposed Development Agreement No. 96 -2 on June 8 and 15, 1998, and recommended approval of the Development Agreement if the Specific Plan is approved. Pursuant to Government Code Section 65864 et sec ., the City is authorized to enter into a development 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. Development Agreements are required to be approved by ordinance prior to execution of the agreement. Government Code Section 65865 specifies that development agreements for properties not within the City shall become operative upon completion of annexation. This is addressed in Section 18 of the proposed Development Agreement, which specifies a date to be completed by , which has not yet been determined. City Council also discussed the potential inclusion of an additional section in the Development Agreement linking progress on the 118 bypass to phasing of the Specific Plan. In response to discussions regarding this issue, Messenger has prepared some draft language (see Attachment 2) which they have indicated they would be willing to agree to if required by City Council. RECOMMENDATION 1. Accept public testimony; 2. Close the public hearing; 3. If Specific Plan No. 8 is approved, consider introduction for first reading of Ordinance No. , adopting proposed Development Agreement, with any modifications deemed appropriate. Attachments: 1. Draft Ordinance No. , approving Development Agreement 2. Draft Potential Addition Regarding 118 Bypass 000002 Cases \sp8 \cc7198da.rpt ORDINANCE NO: AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND HIDDEN CREEK RANCH PARTNERS (MESSENGER INVESTMENT COMPANY) RELATED TO THE DEVELOPMENT OF SPECIFIC PLAN NO. 8: HIDDEN CREEK RANCH. Whereas, at a duly noticed public hearing on October 1, 1997, continued public hearings on October 8, 22, November 12, and December 3, 10, 1997, January 7, 21, March 25, April 1, May 6, 20, 27, June 3, 10, 17 and July 1, 1998, the City Council considered the application filed by Hidden Creek Ranch Partners, L.P., also known as Messenger Investment Company, for the Hidden Creek Ranch Specific Plan Project, consisting of Specific Plan No. 8 /Specific Plan 93 -1, General Plan Amendment 93 -1, and Zone Change 93 -3, for an approximately 4323 acre site located within the City of Moorpark Area of Interest in Ventura County contiguous to the City northerly boundary near Moorpark College and the Campus Park and Varsity Park residential areas, and easterly and southerly of Happy Camp Canyon Regional Park and incorporating more or less Assessor Parcel Numbers: 500- 0120 -035, -55, -065; 500 -0 -170 -135, -205, -255, -285, -295, -305, - 315, -325, -335, -345, -355, -365, -375; 500- 0- 180 -045, -055, -075, -105, -115; 500 -0- 281 -035, -045, -165, -175, -185, -195, -205, -215; 500 -0- 292 -065, -135, -145; 615 -0- 110 -205, -215; and, 615 -0- 150 -185; and, Whereas, the Planning Commission of the City of Moorpark did adopt Resolution PC -98 -354 recommending approval of the proposed Development Agreement between the City and Hidden Creek Ranch Partners, if the Specific Plan is approved; and, Whereas, The City Council on January 21, 1998, adopted Resolution 98 -1425 to certify a Final Environmental Impact Report for the Hidden Creek Ranch Specific Plan and related applications as having been completed in accordance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City's CEQA procedures and meeting all findings required by CEQA; The City Council of the City of Moorpark, California, ordains as follows: Section 1. Findings: (1) Government Code Section 65864 of the State Planning and Zoning Law provides that cities may enter into development agreements with persons having equitable interest in real property for development of that property. (2) The owners of the Hidden Creek Ranch Specific Plan, Hidden Creek Ranch Partners, have applied to the City of Moorpark to seek a development agreement between the city and said owners pursuant to Chapter 15.40 of the Moorpark Municipal Code. (3) The Planning Commission of the City of Moorpark at a duly noticed public hearing on June 8, 1998 and continued to June 15, 1998, has reviewed the Development Agreement, at the request of the City Council, and has made recommendations in Resolution PC -98 -354 to the City Council pertaining to the approval of the Agreement. (4) The City Council has received Planning Commission Resolution PC -98 -354 and has considered the C:\M\jll \sp8reso \devag Page 1 of 3 ATTACHMENT 1 000U131 Planning Commission evaluation and recommendations for approval of a development agreement between the City and Hidden Creek Ranch Partners. (5) A duly noticed public hearing was conducted by the City Council on June 17, 1998 to consider the development agreement and to accept public testimony related thereto and was continued to July 1, 1998. (6) The City Council has considered all points of public testimony relevant to the development agreement and has given careful consideration to the content of the development agreement. (7) The development agreement is consistent with the General Plan. (8) A Specific Plan has been prepared for the property consistent with State Planning and Zoning Law and contains descriptions and boundaries of development units, facilities proposed, circulation, open space, design standards and zoning standards for the project area. (9) The development agreement addresses the period of development, public facilities and infrastructure development and financing for these improvements and sets forth reasonable mitigation fees to defer the cost of development to minimize impacts to the city. (10) That all of the issues raised at the public hearings and in correspondence and other supplemental information provided to Council have been considered, and the City Council further finds that the Hidden Creek Ranch Specific Plan Project EIR adequately addresses all issues raised and no new significant environmental impact has been identified nor has there been identified any feasible project alternative or mitigation measure considerably different from others previously analyzed which would clearly lessen the environmental impacts of the project. All additional correspondence received to this time shall hereby be directed to be incorporated as an additional appendix to Volume VI of the EIR. Section 2. Adoption (A) The City Council of the City of Moorpark hereby approves the development agreement attached hereto as " Attachment A" and incorporated by reference, between the City of Moorpark and Hidden Creek Ranch Partners related to development of Specific Plan 8/ Specific Plan 93 -1 subject to the recommendations of the Planning Commission. (B) The Mayor and City Manager are authorized to execute and sign the final agreement and any covenants necessary to effect the agreement. (C) Upon execution, the development agreement shall be recorded within the Office of the County Recorder, County of Ventura, as a covenant running with all the lands comprising the Hidden Creek Ranch Specific Plan. (D) This agreement shall become operative and run for the term specified within the agreement C:\M\jll \sp8reso \devag Page 2 of 3 00000 -1� PASSED, APPROVED, AND ADOPTED THIS 1" DAY OF JULY, 1998. AYES: NOES: Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt City Clerk ATTACHMENT: Hidden Creek Ranch Development Agreement C:\M\jll\sp8reso \devag Page 3 of 3 203723.7mp Recording Requested By DRAFT dated 05 -14 -98 a5-gv 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 AND OWNERS OF LAND WITHIN HIDDEN CREEK SPECIFIC PLAN NO. 8 ATTACHMENT A 00000rl 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 �J 203723.7mp ���C•1��� �1���L ; � M 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 at 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" -1- 0000 V S attached hereto and incorporated herein. Hidden Creek Ranch, L.P. ( "HCR") is a Developer that owns approximately 4,0,00; 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 proposed to `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. fflv�03@ commenced a 203723.7mp 1998, the Planning Commission of City duly noticed public hearing on this -2- 000009 203723.7mp 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 Developers 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 -3- 00001J) 203723.7mp 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 Pro govern the subdivision 4.1. Permitted Uses permitted uses those that are this Agreement. �ety. The following provisions shall development and use of the Property. The permitted and conditionally of the Property shall be limited to allowed by the Project Approvals and 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. 1XIC 203723.7mp L-71,721 IM W73 sTA NO 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, Public Services, and Facilities 'Implementation and Financing,Prolgram (Infrastructure and Finaneing Plan), as described in section 6.14 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 -5- Y 00012 203723.7mp Developer on terms more favorable than those provided to HCR by the Project Approvals or this Agreement. 5.3. Issuance of Subseauent 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 wig 203723.7mp of all or any part of the Project in any manner, provided that all infrastructure required by the Infrastructure and Finaneing 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;'I,;=approved planning units and of SP 93 -1', except.'-Planning' Unit 44B. Prey: e c t . 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire ten ;(10)' 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. -7- 203723.7mp 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 and 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 -8- 203723.7mp 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. 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. tea. 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 QO001O 203723.7mp intended purpose, as reasonably determined by City. 6.4. As a condition of the issuance of a building permit for each golf course,; 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, golf course, 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 .eah,'approved -golf° course °anc 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 -10- 000017 203723.7mp 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, 9911 f course;; 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, Seventy -Two. Thousand: - Dollars ti00 , 00? per , each approv�:d gol f 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 '(except forr.;the three, hundred' sixty five : (365), affcordabl'e, dwelling units ,provided for in -11- 000018 203723.7mp subsection 6.19. which`; are `exempt from the fee contained in this` subsection, 6,73, golf course, 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, Eighty :,Two - Thousand 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 adjidetment shat be the ethod and index to 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 -12- 600 C _9 203723.7mp 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. Timing for recordat om, *f the conservation easement shall be eneurrently With .included in the infrastructure Pl: an -. 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; -13- 0®0921.7 203723.7mp 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. -14- 000021 --- - - - -- - - - - -- - iz. -14- 000021 203723.7mp preceding year ( "annual_. indexing"), -. In .the event there is, a: decrease, in the; referenced index for any annual until such time as the next subsequent annual inde -15- oo�oti?- - - - -- - -- - - - - -- - - -- -- -- - -- - - - -- -- -- - - -- -- -- - - - - preceding year ( "annual_. indexing"), -. In .the event there is, a: decrease, in the; referenced index for any annual until such time as the next subsequent annual inde -15- oo�oti?- 203723.7mp which results an 1, rease 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 improvement glans and aQecifcatonshal],be` similar as ;,aeterminea' by th+e C t r t is sti3:e discretion. 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. -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 et seQ. 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 t-emt of existing ^h p __ Four Hundred:Sixtv,Dallars. and fifty -six cents ind ten cents '($.10) per square foot of or non-residential uses'. The fee shall Los Angeles /Anaheim /Riverside metropglitan area during the "prior ''year'. The calculation shall be made using the month which is 'f our '(4}.months prior to the month 203723.7mp -17 wC z-1 203723.7mp the increase).. 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 avarlable — €er in use prior to the first occupancy approval for each City approved phase of development and prior to occupancy approval for each golf course, if such recycled water is ava� =7 °able. 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 -18- 203723.7mp 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 dea : e a t ee i s proposed by FiCR 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 nen 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 ne prefi Entity shall be obligated to grant City a conservation easement in a form acceptable to City consistent with Civil Code Section 815 et seq., or i4,the event;.,HCR has a i'n 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. OVZ 00002 203723.7mp 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. facilities, °; and, services for each Land Use Planning Unit, including both.an -site and off -site circulation, facilities, and services, as well as all affordable housing; unit's, parks, trails, circulation, roadways and intersections, drainage, water, reel aimed— recycled water, and wastewater treatment improvements required for implementation of the Specific Plan development, including the requirements required for each approved phase of development. Thee,Infrastructure,Plan shall address; the specific requirements' to be completed, the entity' ,responsible " "for each: ;item, and the timing:, for -20- 000027 203723.7mp 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 Unit Q States Department of Housing and CommunityH-rislafx Development (HCAHUD) 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`,,duration of the,. '.Regulatory Agreement. C. The 365 affordable dwelling units (DUs) to be constructed on HCR property shall consist of the following unit types: KM- Rental Units - Very Low and Lower 250 Rental Units - Senior 25 -21- 00000 %V 203723.7mp 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 of For-Sale Units can be increased as� mutually agreed upon without an, ,amendment to this,Agreement. Any 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 fifty percent (50W) of the units within a particular planning unit. The City Council may approve except ions <,,< to the . ,fifty, percent (50%) limitation without `axn amendment to-this Agreement. 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 ealeulated by plying --3.9 -22- 000029 203723.7mp fer family y size, - as —determ :eel —by the number of bedreems, and --then dividing twelve 42) . consistent with the :requi remnent 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 eal eulated by fffultiplying BE) pereene times —fie dividing by twelve (444—. consistent With the requirements of ='�HCD. 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 HCDH:UD 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. -23- (J ()(J(J3O 203723.7mp 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 -24- Voowl 203723.7mp 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 1,001et 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 2,201"t 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 3,001Bt 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 -25- 000032 203723.7mp the provision of the affordable dwelling units and the execution of a Regulatory Agreement to ensure compliance with affordable requirements. subsections 6 1:9. and `' 21 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. HC O =a rees'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 , set forth the mitigation requirements for;air quaxl,ity:impacts'. HCR further; agrees that air quality and - a€€re -ti fees, referenced but not specifically calculated in the EIR and Mitigation Monitoring Program, are agreed totes felle;:T be calculated a €s'a condition of the issuance of 'a building permit for -;each residential,, commercial, golf, course,� within the boundaries of .the'Speoi:fic`:Plan. HCR;also agrees to pay to "City 'an air- quality,mitigation fee,,as described -26- 0000133 203723.7mp herein �, 'IIthe, Air in' ­satisfaction of the Transp t ion ,)e m e Fund requirement in", the Report mitigate residual Project ',air quality impacts. (On the operative date of; 'this, Agreementj the. amount of the Air Quality',Fee shall. $76o per dwelling unit, $32,000 per gross acre of 'commercial-or : institutional land, and For :residential,,-,. pro Quality Fee shall, be the same ,,"-.,fqr­all 'dwelling units rapproved, as part of a be. cal culated-by, the Co i Y, Develppmen,,P pp4rtment they Tee.,,­,shall, ,be calculated: by.." the Community Development ,:Zevartment prior to the first the times ,specified .in this paragraph using the City's approved model. HCRIs agreement to',11pay the Air l,,Quality Fee shall ` be e4le.- clean-fue,l,,. or -electric #Ybria� .school buses should be purchased and maintained', , by the project applicant, to transport elementary and middle school students living at Hidden Creek Ranch. Prio 9 r to:, ccupanq tho:�� aooXh re s idential unit,, an ons.ite, Dark and 'rid 'Ph,411 be' constructed, : ,by -27- 203723.7mp 0 the,pr© eq, 'cant 't, car­pqoll�ng. j.t �,i.,:app'� I in'the,City of Moorpark. Prior to occupancy of the,2, 0 0 0 th,, residential unit, all by transportat =ion sources -,..IWote *.,,,To,'be ­ used-, if the applicant, does not pay,,,thez,CityIs,, TDM Fund fee, 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 fia-i-r-prp-,rata share of intersection and roadway improvements within Specific Plan No. 2 to accommodate additional traffic, and its 4a4r­pro-Irata 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 ef fairforl,!,the".,prorrata 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 torn. "of a , reimbursement. payment -,inclusive of interest -payments "to the owner's .,of , ,Spec, ific Plan No., 2 or others and, City 4dminstrati.ve ',Costs. -28- 203723.7mp -29- 000034 ProteqP4.o m, District 71 6.27. 6.30. 203723.7mp City Attorney acknowledging the presence of a well or drilling site and the'fact that operations associated therewith may disturb future occupants, even though said operations are being conducted in accordance with specific permit conditions, HCR shall, also cause said notice,':lto-be recorded-on each lot of any subdivision of -30- 00003 7 203723.7mp fe t .try the =;: wolf si M04 court action. 6.32. In addition to, 'fe Agreement, HCR a 1 situated properties;; .ed in this ty capital Eees at the the f ee is laxly 6.33. HCR agrees that the,'Infrastructure Plan shall contain a provision obligating. HCR -for, the long term maintenance; of streets,, that rare used by construction vehicles.; 6.34. HCR shall."form one. -or {moire property owner associations -31- 0000138 203723.7mp to asaHme ownerh.p :and „nritenanGe of open !space land, 7.1. 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 ' uthori ze agrees to: impose Spec i f i c' P1 an', nq costs of preparat related'Environmez be the number'.of owner divided by within the'Specif fees collected from preparation and- pz Agreement. 7 ° 3 by HC -32- V() () () 1711' 203723.7rnp 53345.' Tn, the , vent,',that a:.,,,.District,is :formed,-,the :special tax levied aqainst 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= -ot.,.,the residence. ,attorney!, fees,,-appraisal fees, overhead . expenses of fifteen Aet costs and City staff costs. infrastructure, Plan.. In,-the case of failure to, comply .with the terms and�conditions,of the early grading agreement, the City Council may by resolution declare the surety forfeited. 7.6 City agrees that:, HCR is -exempt,, from the payment of Los Angeles Avenue area of contribution 'MOC),fees. 7.7 City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements; for:,, the -same yproperty- 'so long , as said -33- 000040 203723.7mp entitlemeteg are {:deemed complete., 7'.8 �,C Campus Park Drive., consistent, with approval of;the-Spec Plan, EIR mitigation, measures, Project Approvals' Subsequent Approvals. 7.9. City agrees that the land and Amprovements. required under subsection +6.11. of this Agreement meets HCR' °s obligation for park land dedication under applicable provisions of state law and City.codee, maximum amc open space 7!.,11 Regulatory Agreement requi units are required to be.ma upon the full funding of tr City's adopted fee schedule .public lanand compliance with the erein for the duration such ied as affordable, contingent f �ti:me ,by, HCR, ,based on the 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 -34- 203723.7mp 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 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 -35- (f',n " -v(I 12, 203723.7mp (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, 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 remedies at law, including without damages, would be inadequate for Agreement by any Party due to the scope of the Project. The Parties that it would not be feasible or pc -36- acknowledge that limitation money breach of this size, nature and also acknowledge ssible to restore 000043 203723.7mp 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. 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. -37- 203723.7mp 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, 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 MCI-4a 203723.7mp 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 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. 2912 00004k 203723.7mp 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. 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 -40- 0001 ,4 7 203723.7mp 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. 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 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. -41- 000048 48 203723.7mp 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 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. -42- 60(2o► -9 203723.7mp 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 -43- 000050 203723.7mp 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 -44- 203723.7mp 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 -45- Patrick Hunter Mayor 000O52 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- 000053 Jun -24 -98 11:58 messenger investmentco. 714 546 -1050 P.02 MEMORANDUM TO: Nelson Miller, City of Moorpark FROM: Gary Austin, Messenger Investment Company DATE: June 24, 1998 RE: Proposed Additions to SP -8 Development Agreement _. A. Prior to the determination of completeness for the Master Tentative Map or first subdivision, HCR shall submit a HWY -118 Bypass Road Implementation and Financing Plan (the "Bypass Plan ") to be reviewed and approved by the City Council prior to the approval of any tentative subdivision map or any other development project or entitlement application for the Specific Plan area. This Bypass Plan shall include methodology and projected timeline by which HCR will manage on behalf of the City the feasibility studies, design, right -of -way acquisition plan, approval process, financing arrangements and all other tasks required to complete the HWY -118 Bypass Road (the "Bypass "). _. B. Upon conceptual approval of the Bypass Plan (and a pre - construction budget) by the City Council, HCR shall commence the initial phase of the project which shall include the preliminary design, applications, right -of -way negotiations, consultant retention, etc. All contracts shall be approved by a designated City staff person and /or City council prior to implementation by HCR. _. C. Prior to the issuance of the 1,001` building permit within the Specific Plan area, HCR will have submitted to the City final design and engineering plans for the roadway together with a financing plan demonstrating the ability to fund the construction of the Bypass. The financing plan will be approved at the sole discretion of the City council. _. D. HCR shall be financially responsible for all studies, design, engineering, etc. in connection with the Bypass until such time that City is able to reimburse HCR for costs expended (in no event greater than as shown in the pre - construction budget) that City is to receive from sources described herein. HCR shall receive no compensation for its efforts in managing the Bypass project, but shall be reimbursed for all budgeted costs. ATTACHMENT 2 Jun -24 -98 11:58 messenger investmentco_ 714 546 -1050 P_03 Memorandum Nelson Miller June 24, 1998 Page 2 _. E. City agrees to collect the "Citywide Traffic Fee" from HCR and others (per the then applicable rate as discussed in section 6.6 herein) and reimburse HCR for its expenditures relating to the design /engineering of the Bypass. _. F. City agrees to collect and allocate the "Development Fee" (per the then applicable rate as discussed in section 6.5 herein) for the initial 1,000 residential units within the Specific Plan area for the Bypass. The aforementioned financing plan will include provisions by which the City will be reimbursed (together with interest on the disbursed amounts @ 6 %) for all Development Fees used for the Bypass. .G. Prior to the issuance of the 2,001't building permit within the Speck Plan area, the actual construction of a portion of the right -of -way for the Bypass shall have commenced unless the City, in its sole discretion, elects to delay said construction. 0®0-05 - -.