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HomeMy WebLinkAboutAGENDA REPORT 1999 0818 CC REG ITEM 10Kiia I�� (t "cJi ITEM CITE.' OF MOORPARK, CALIFORIYLA City Council Meeting, of CITY OF MOORPARK AGENDA REPORT TO: Honorable City Council FROM: Steven Kueny, City Manager L DATE: August 13, 1999 (CC Meeting of 8/18/99) 9'r I I t'.�i� a SUBJECT: CONSIDER PROPOSED DEVELOPMENT AGREEMENT FOR SPECIFIC PLAN NO. 2 (MOORPARK- HIGHLANDS /MORRISON- FOUNTAINWOOD- AGOURA) BACKGROUND Specific Plan No. 2 has been in preparation and under consideration for several years. As part of the process, a City Council Ad Hoc Committee was appointed to assist with the review of the critical portions of the proposed plan related primarily to land use and circulation issues and to negotiate a development agreement. The Ad Hoc Committee currently consists of Mayor Pro -Tem Evans and Councilmember Harper. Former Councilmember Perez previously served on the Committee. The Development Agreement is necessary because the proposed plan includes grading in areas otherwise restricted by the City's hillside grading provisions and because the proposed number of dwelling units exceeds the maximum limit (475 DU) provided for in the City's Land Use Element. DISCUSSION The Committee has met several times to discuss the proposed agreement. With the exception of certain language provisions, negotiations with the developer have been concluded and it is recommended by the Committee and staff that the City Council direct the Planning Commission to consider the proposed Development Agreement and make its recommendation to the Council. The draft agreement can be considered by the Planning Commission on August 30 and the Council can schedule its public hearing for September 15. The proposed agreement is consistent with prior development agreements for residential projects. Sections 6 and 7 of the agreement, which contain the respective considerations by the developer and City, are similar to the prior agreements. The considerations are summarized as follows: 000304 Proposed Development Agreement for Specific Plan No. 2 ( Moorpark - Highlands /Morrison - Fountainwood- Agoura) Page 2 A. Developer Agreements: 1. Payment of a development fee in the amount of $7,300.00 per dwelling unit with an annual adjustment in the fee. 2. Payment of a Citywide Traffic Mitigation Fee in the amount of $4,000.00 per dwelling unit with an annual adjustment in the fee. 3. Payment of a Community Services fee in the amount of $500.00 per dwelling unit with an annual adjustment in the fee. 4. Grant a Conservation Easement to City to insure the Habitat Conservation area and other specific open space areas remain as open space regardless of who ultimately owns and maintains it. 5. Dedicate an approximate 7 -acre neighborhood park and develop it with amenities approved by the City and pay an endowment fee to fund replacement of park amenities in the future. 6. Construct public streets adjacent to school and park sites with a curb -to -curb width of between 48 and 60 feet as determined by the City. 7. Construct new traffic signals at designated intersections including Charles Street /Spring Road, Walnut Canyon Road /Spring Road, Spring Road / "C" Street, "C" Street /Unnamed loop street, and Spring Road /Unnamed loop street; upgrade the traffic signal at High Street and Spring Road; and provide an interconnect system for all of the referenced signals. 8. Dedicate rights of way on Los Angeles Avenue frontage of the site and acquire parcel at southwest corner of Spring Road /Charles Street and dedicate excess right -of -way to City and install landscaping and related improvements. 9. Pay air quality fees consistent with Final EIR and Mitigation Monitoring Program. 10. Waive any right to a density bonus. 000305 Proposed Development Agreement for Specific Plan No. 2 ( Moorpark- Highlands /Morrison - Fountainwood- Agoura) Page 3 11. Provide block wall and landscaping along east side of Spring Road behind the homes that front Sir George Court. 12. Construct a 6 to 8 foot high block wall (as measured from sidewalk elevation) along the west side of Spring Road from Los Angeles Avenue north to the last residential unit south of the railroad tracks. 13. Irrevocable offer of dedication for future right -of -way for State Route 118 and 23. 14. Provide access to properties west of the Spring Road extension to the satisfaction of the City. 15. Irrevocably offer to dedicate to the City the eastern portion of proposed "C" Street. 16. Improve trails and provide annuity as determined necessary by City to provide maintenance of public trail system within Specific Plan No. 2 and also provide equestrian crossings at or near street intersections to the satisfaction of the City. 17. Irrevocably offer to dedicate Area 17 to City. The Ad Hoc Committee recommends that the developer meet its affordable housing obligation by the payment of $2,040,000.00 and providing 25 units in Area 5 for sale to low - income households. This includes a modification for Area 5 from 130 attached units to 102 detached, single- family units. The Committee also recommends the full build out of Spring Road from "C" Street to Walnut Canyon Road. B. City Agreements: 1. Consider creation of Mello Roos District, so long as purchasers of residential lots have option to prepay any special tax. 2. Allow for early grading agreement. 3. Cap payment of Los Angeles Avenue Area of Contribution (AOC) fees to first 475 residential units. Any institutional uses shall pay AOC fees in addition to the first 475 residential units. 000306 Proposed Development Agreement for Specific Plan No. 2 ( Moorpark - Highlands /Morrison - Fountainwood- Agoura) Page 4 4. Approve an exemption to the Hillside Grading Provisions. 5. Dedication of park land and City approved improvements meets developer's park land dedication obligation. 6. Cooperate to allow developer to receive tax benefits, if any for dedication of public open space. 7. Whenever possible at City's discretion to concurrently process land use entitlements. 8. At developer expense, acquire offsite property needed to construct required public improvements. 9. Facilitate any required pro -rata reimbursements from other developers for certain public improvements. Staff is working with the developer to complete the language of the draft agreement by August 17. In any event since the agreement contains almost identical language as prior agreements for residential projects it is recommended that this matter be referred to the Planning Commission whether or not the draft agreement is 100% complete. The Council previously took such action with the A/B and SCE development agreements. In summary, the draft agreement contains the City's standard language for similar agreements and the items of consideration by the City and developer are comparable to prior development agreements for residential projects. STAFF RECOMMENDATION Direct Planning Commission to consider proposed development agreement and set City Council Public Hearing for September 15, 1999. 000307 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 rren2 /0. /<.;� DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND AGOURA FOUNTAINWOOD for MOORPARK HIGHLANDS SPECIFIC PLAN NO. 2 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 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 Fountainwood Agoura, a California General Partnership, the owner of real property within the City of Moorpark generally referred to as Moorpark Highlands Specific Plan No. 2 (referred to hereinafter individually as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developers agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code section 65864 et seq. and Moorpark Municipal Code chapter 15.407 City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. 1.2. Prior to approval of this Agreement, but after the certification of that certain Moorpark Highlands Specific Plan No. 2 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. 95 -2 ("GPA 95 -211) and Moorpark Highlands Specific Plan No. 2 ( "SP 95 -211) for approximately 445 acres of land within the City ( "the Property "), as more specifically described in Exhibit "A" attached hereto and incorporated herein, and changed the zoning of the Property pursuant to Zone Change No. 95 -4 ("ZC 95 -411). 1.3. Developer has a legal interest in the Property, as more specifically described in Exhibit "B" attached hereto and incorporated herein. 1.4. GP 95 -2, SP 95 -2 and ZC 95 -4 (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 "). Moorpark Highlands Dev Agr — 2— 1.5. 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. 1.6. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. Developer anticipates developing the Property over a minimum of three (3) years. 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. 1.7. City and Developer 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 95 -2. 1.8. On , the Planning Commission of City commenced a duly noticed public hearing on this Agreement, which was continued to , and at the conclusion of the hearing recommended approval of the Agreement. 1.9. On , the City Council commenced a duly noticed public hearing on this Agreement, which was continued to , and subsequently to , and to , 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 also 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" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project area that has been Moorpark Highlands Dev Agr — 3 — 4 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 expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Moorpark Highlands Dev Agr _ 4 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. 5. Vesting of Development Rights. 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. Nothing in this section shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement. 5.2. Amendment of Project the Project Approva_ the City Council referendum process, Property, unless the the amendment. Approvals. No amendment of any of Ls, whether adopted or approved by or through the initiative or shall apply to any portion of the Developer has agreed in writing to 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, Moorpark Highlands Dev Agr — 5 — 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 number of proposed buildings or other improvements from what is allowed by the Project Approvals. (c) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals 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 rents; (f) prohibit or regulate development on slopes with Moorpark Highlands Dev Agr — 6 — grades greater than 20 percent, including without limitation Moorpark Municipal Code chapter 17.38 or any successor thereto, within all approved planning units of SP 95 -2,; or (g) modify the land use from what is permitted by the General Plan Land Use Element at the operative date of this Agreement or that prohibits or restricts the establishment or expansion of urban services including but not limited to community sewer systems to the Project. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire seven (7) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. Each Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code section 66410 et seq., or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's 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, 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 Moorpark Highlands Dev Agr — 7 — 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 Project Approvals, Subsequent Approvals, and this Agreement to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, 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. Developer Agreements. 6.1. Developer shall comply with (i) this the Project Approvals, (iii) all Subs for which it was the applicant or interest to the applicant and (iv) Monitoring Program and any subsequent program. Agreement, (ii) equent Approvals a successor in the Mitigation or supplemental 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 "C" attached hereto and Moorpark Highlands Dev Agr —8— 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 intended purpose, as reasonably determined by City. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Specific Plan, Developer 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 Three Hundred Dollars ($7,300.00) per residential unit and Thirty -Two Thousand, Eight Hundred Fifty Dollars ($32,850.00) per gross acre of institutional land on which the use is located. The fee shall be adjusted annually commencing one (1) year after the first residential building permit is issued within Specific Plan 95 -2 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 first residential building permit is issued within Specific Plan 95 -2 (e.g., if the permit issuance occurs in October, then the month of June is used to calculate the increase). In the event there is a decrease in the referenced Index for any annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.5. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Specific Plan, Developer 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 Moorpark Highlands Dev Agr — 9— Thousand Dollars ($4,000.00) per residential unit, and Eighteen Thousand Dollars ($18,000.00) per acre of institutional land on which the 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. 6.6. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the Specific Plan, Developer 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. The amount of the Community Services Fee shall be Five Hundred Dollars ($500.00) per residential unit, and Two Thousand, Two Hundred Fifty Dollars ($2,250.00) per gross acre of institutional land on which institutional use is located. Commencing on October 1, 2002, and annually thereafter, the Community Services Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all In Lieu 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 of June over the prior month of June. In the event there is a decrease in the CPI for any annual indexing, the In Lieu Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.7. At City's request, Developer shall grant a conservation easement to City to retain the lots shown as Open Space including Planning Areas 10, 11, 14, 15, and 16 with only those uses shown as permitted in the Development Regulations of the Specific Plan 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 Moorpark Highlands Dev Agr _ 10 exclusions described in this subsection shall be included in the conservation easement. The conservation easement shall be recorded concurrently with recordation of the first final map for the Property and shall be in a form acceptable to City and consistent with Civil Code Section 815 et seq. 6.8. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, the Specific Plan and EIR. 6.9. Within the boundaries of the Specific Plan, Developer shall dedicate, at its sole cost and expense, the approximate seven (7) acres of parkland 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, Developer shall make improvements to the park land dedicated pursuant to this subsection and shall provide maintenance of the land and improvements. The park site improvements shall include, at City's sole discretion, one or more of each of the following items except C., which shall be limited to two: 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 with lighting for one (1) field if desired by the City. 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 two (2) fields if desired by the City. 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 Moorpark Highlands Dev Agr _11— H. Off - street parking with standard sized parking spaces. I. Skate facility of approximately 10,000 square feet. The full construction cost of said improvements for the site shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000.00). Said amount shall not include any overhead, administrative or similar costs, or profit by Developer or any Developer - affiliated entity. Commencing one (1) year after the first residential building permit is issued within the Specific Plan and annually thereafter, this amount shall be increased to reflect the change in the Price Index that includes park and building construction 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, it shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 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 maximum average cross slope for the entire park site shall be two percent (2 %) with the intent that the maximum amount of land possible be utilized for park improvements included in this subsection. This cross slope standard may be amended based upon approval by the City Council of a specific park design. The improvement plans and specifications shall be similar to those improvements constructed at other City parks as determined by the City at its sole 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 Moorpark Highlands Dev Agr —12— improvements, it shall be hydroseeded and provided with other appropriate means of erosion control. At their sole cost and expense, Developer 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 park shall be dedicated to City improved and available (open) to the public prior to the occupancy of the 350th dwelling unit within the boundaries of the Specific Plan. The park site shall be offered for dedication to City upon approval of the first final map in which the park site is located. After each park is opened to the public and prior to its formal acceptance by City, Developer shall provide a minimum of one year and a maximum of two years' maintenance for the park land and improvements, including all labor, materials, and water, in accordance with the specifications used by City at its parks. All land provided by Developer to City for parks, recreation and open space purposes shall be deeded to City without any restrictions for current or future use. Developer 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 570 residential units. Developer 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. Any dwelling units in excess of 570 and any institutional land uses shall be required to satisfy the Quimby requirement in additon to those items contained in this subsection 6. In addition to the required construction and maintenance described above, Developer shall at its sole cost and expense provide City a cash deposit in the amount of Three Hundred Fifty Thousand Dollars ($350,000.00) to fund the replacement of the park amenities as determined by City at its sole discretion. Payment shall be made prior to occupancy of the five hundredth (500th) residential unit. Moorpark Highlands Dev Agr —13— 6.10. Developer 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. 6.11. Developer 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. Developer shall provide service including payment of any connection and meter charges and shall use recycled water for medians and parkways for all public streets, park, 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 in use prior to the first occupancy approval for each City approved phase of development if such recycled water is available within one -half mile of the Property. Developer shall install dual water meters and services for the park site and other locations determined necessary by City at its sole discretion to insure that both potable and recycled water are available where restroom and drinking fountains are planned. 6.12. Greenbelts, open space areas, landscaped areas, and trails lying within each portion of the Property (not covered by any other section) shall be dedicated to City in a form approved by the City Attorney, or to one or more homeowners or property owners associations as determined by the City Council at its sole and unfettered discretion, as a condition of recordation of the final subdivision map or parcel map defining the area within which said areas are located. Greenbelts, buffers and open space areas may include wetlands, storm water detention areas, landscaping and decorative planting areas that do not interfere with greenbelt, buffer and open space uses as determined by the City at its sole and unfettered discretion. Such areas not dedicated to City shall include a conservation easement granted to the City in a form acceptable to the City consistent with Civil Code Section 815 et seq. Moorpark Highlands Dev Agr —14— 6.13. Developer agrees to grant the City a conservation easement in a form acceptable to the City consistent with Civil Code Section 815 et se q. for Planning Areas 12 and 13 to insure this area remains as public open space. 6.14. Developer shall provide twelve (12) three (3) bedroom and two (2) bath units at no less than 1050 square feet in size, and thirteen (13) four (4) bedroom and two (2) bath units at no less than 1425 square feet in size to be sold to buyers who meet the criteria for low income (80% of median income). The initial sales price, buyer eligibility, resale restrictions, respective role of City and Developer, and any other item determined necessary by the City shall be set forth in the Affordable Housing Implementation and Resale Restriction Plan, which shall be approved by the City Council in its sole and unfettered discretion prior to recordation of the first final Tract Map for this project. The Developer and City shall, prior to the occupancy of the first residential unit for the Project, execute an Affordable Housing Agreement that incorporates the Plan in total and is consistent with this Agreement. Developer shall pay the city's direct costs for preparation and review of the Plan and the Affordable Housing Agreement, up to a maximum of Five Thousand Dollars ($5,000). In addition, in lieu of constructing any Very Low Income Affordable Housing Units on site, for each of the five hundred and seventy (570) dwelling units, Developer shall pay to the City an In -Lieu Fee which shall be used by the City at its sole discretion for the purpose of providing housing affordable to very -low, low, or moderate income households. The In -Lieu Fee in the amount of Three Thousand Five Hundred and Eighty Dollars ($3,580.00) shall be paid prior to issuance of the building permit for each dwelling unit in the Project. Commencing on October 1, 2002, and annually thereafter, the In -Lieu Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all In -Lieu 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 of June over the prior month of June. In the event there is a decrease in the CPI for any annual indexing, the In -Lieu Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Moorpark Highlands Dev Agr —15— 6.15. Developer agrees that the Mitigation Measures included in the City Council certified 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 quality impacts. Developer further agrees that air quality fees, referenced but not specifically calculated in the EIR and Mitigation Monitoring Program, are to be calculated as a condition of the issuance of a building permit for each residential and institutional use within the boundaries of the Specific Plan. Developer also agrees to pay to City an air quality mitigation fee, as described 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 sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. 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 institutional uses, the Air Quality Fee shall be calculated by the Community Development Department prior to the first occupancy approval for each institutional use. The Air Quality Fee shall be calculated at the times specified in this paragraph using the City's approved model. 6.16. Developer shall install block wall fencing and landscaping screening along the east side of Spring Road, along the rear of the homes on Sir George Court. Such block wall fencing shall be the same quality as the block walls installed within Specific Plan No. 2 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. 6.17. Prior to the submittal of an application for any subdivision, or any other development project or entitlement application, Developer shall submit and gain approval from City Council a plan to guarantee the agreements contained in this Section 6. The plan shall address the entities responsible and method and timing of guarantee for each component of Developers Moorpark Highlands nev Agr -16- obligations and is subject to City approval at its sole discretion. 6.18. Developer agrees at its sole cost and expense to install traffic signals at any intersection within the Project area and at off site locations as determined by the City in its sole discretion including but not limited to Charles Street /Spring Road, "C" Street /Spring Road; "C" Street /Unnamed loop street, Spring Road /Unnamed loop street, Spring Road /Walnut Canyon Road, and modification to High Street /Spring Road. Final design, plans and specifications shall be as approved by the City Council and shall include an interconnect system for all required traffic signals. Developer shall also pay City's costs for plan check and inspection plus City administrative costs. 6.19. 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 dwelling units approved to be constructed in Specific Plan No. 2. 6.20. Developer 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. Developer 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. 6.21. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, entitlement processing fees, and plan check and permit fees for buildings and public improvements. Developer further agrees that Moorpark Highlands Dev Agr -17- unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. 6.22. Prior to recordation of the first final map for the Property, if required by City at its sole discretion, Developer shall form one or more property owner associations to assume ownership and maintenance of open space land, trails and other amenities. The obligation of said property owner associations shall be more specifically defined in the conditions of approval of the first tentative tract or parcel map for the Property. 6.23. Future rights -of -way for State Route 118 and State Route 23, as shown on the Specific Plan Land Use Map, shall be offered to be irrevocably dedicated to the City in a form approved by the City Attorney. 6.24. Developer shall provide vehicular access to properties west of Spring Road subject to approval of the City Council as a condition of approval for the first tentative tract or parcel map for the Property. 6.25. If determined necessary at City's sole discretion, Developer shall at its sole cost and expense construct a solid block wall to replace the existing block wall /wrought iron fence along the Spring Road and Charles Street frontages of the residential project located at the southeast corner of Spring Road and Charles Street. Developer shall at its sole cost and expense (i) design the wall improvements, (ii) prepare final design, plans and specifications, (iii) submit the plans and specifications to City for approval and plan check, and (iv) pay City for inspection of the construction including City administrative costs. 6.26. Developer shall at its sole cost and expense remove the existing block walls /fences and construct a solid decorative block wall along the west side of Spring Road from Los Angeles Avenue north to the last residential unit south of the Union Pacific railroad tracks. The wall shall be six feet (61) to eight feet (81) in height as measured from the elevation of the Spring Road sidewalk. Final design, plans, and specifications shall be approved by the City Council at its sole discretion. Developer shall also pay City's costs for plan check and inspection plus City administrative costs. Moorpark Highlands Dev Agr -18- 6.27. Developer shall irrevocably offer to dedicate to City a) that portion of the Project area fronting on Los Angeles Avenue needed by City for construction and related slope and construction easements for City funded street improvements on Los Angeles Avenue; and b) any property adjacent to the extension of Spring Road between "C" Street and Walnut Canyon Road needed for ultimate build out of Spring Road not required to be constructed by Developer as part of the Project. 6.28. Developer shall acquire at its sole cost and expense the property needed to improve the intersection of Charles Street and Spring Road including the vacant properties at the northwest and southwest corners of said intersection. Any property acquired in excess of that needed for actual travel or bike lanes or sidewalk shall be landscaped, and /or otherwise improved in a manner determined by City at its sole discretion and at Developer's sole cost and expense including a block wall at the property line. 6.29. Developer shall at its sole cost and expense irrevocably offer to dedicate to City the right of way for an extension of "C" Street from the terminus of the "C" Street improvements required in the Specific Plan and Subsequent Approvals to the eastern boundary of the Project. At City's sole option, Developer shall provide a surety in a form and amount approved by City at its sole discretion to guarantee the construction of that portion of "C" Street described above. 6.30. Developer at its sole cost and expense shall construct the public trail system identified in the Specific Plan, including inspection and City administrative costs. Developer shall also at its sole cost and expense prepare a design, and plans, and specifications for submittal to City. City shall approve design and plans and specifications at its sole discretion. Developer shall at its sole cost and expense provide to City a cash deposit in the amount of Dollars ($ ) to fund the maintenance of the trail system. The required improvements shall also include construction of equestrian crossings at or near street intersections as determined necessary by City at its sole discretion. 6.31. Developer shall at its sole cost and expense irrevocably offer to dedicate Planning Area 17 to City. Moorpark Highlands Dev Agr -19- 6.32. Prior to occupancy of the first residential unit in the Project area, the Developer shall pay to the City One Hundred Twenty -Five Thousand Dollars ($125,000.00) to satisfy the Final EIR Transportation /Circulation Mitigation Measure 2. and for Developer's fair share contribution at the intersection of Los Angeles Avenue and Tierra Rejada Road. 7. City Agreements. 7.1. City shall commit the necessary time and resources of City staff to work with Developer on the expedited and parallel processing of applications for Subsequent Approvals for the Project area and shall use overtime and independent contractors whenever possible. Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, the expedited and parallel processing. 7.2. City agrees that upon receipt of a landowners' petition by Developer and Developer's payment of a fee, as prescribed in California Government Code Section 53318, City shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the public facilities, infrastructure and services that are required by the Specific Plan and that may be provided pursuant to the Mello -Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and /or deem it unnecessary to incur bonded indebtedness at the conclusion of 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. 7.3. If requested in writing by Developer and limited to City's legal authority, City shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside City's legal boundaries. The process shall generally follow Government Code Section 66457 et sue. and shall include the obligation of Developer to Moorpark Highlands Dev Agr -20- enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs and City staff costs. 7.4. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the conditions of 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 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 Specific Plan and Tentative Map. 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. 7.5. City agrees that 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 deemed complete. 7.6. City agrees that the land and improvements required under subsection 6.9. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes except for dwelling units in excess of 570 and any institutional uses which shall have to separately meet the requirement for park land dedication. 7.7. City agrees, at no cost to City, to cooperate with Developer to allow Developer to receive the maximum amount of tax benefits for the dedication of public open space in Planning Areas 12 and 13. 7.8. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Specific Plan required herein for the duration such units are required to be maintained as affordable consistent with the provisions of subsection 6.14. 7.9. City agrees to allow for a variation of five feet (51) maximum in the grades as shown on the Grading Plan exhibit of the Specific Plan subject to approval of Moorpark Highlands Dev Agr -21- the Director of Community Development upon a determination by the Director in his /her sole discretion that the overall design and visual quality of the Specific Plan would not be significantly affected. 7.10. City shall limit the payment of the Los Angeles Avenue Area of Contribution (AOC) fee to only the first four hundred seventy -five (475) residential units and any institutional uses within the Project. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit for each of the residential units and institutional uses. 7.11. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map development permit or development agreement with one or more other developers. 7.12. Developer shall not be required to pay the Gabbert Road /Casey Road Area of Contribution Fees referenced in the Final EIR Transportation /Circulation Mitigation Measure 5. (Note: This was an error in that SP -2 is not within the boundaries of this AOC.) 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developers with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of Developers hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay ", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is Moorpark Highlands Dev Agr —22— 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. Default Provisions. 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 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 (b) fails to make any payments required under this Agreement; or (c) 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 City. City shall be deemed in breach of this Agreement if it: (a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set Moorpark Highlands Dev Agr -23- 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 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. 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 6.11 (parks) or Subsection 6.19 (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 Moorpark Highlands Dev Agr —24— applicable to any other Developer, and any remedy arising by reason of such breach shall be applicable solely to the Developer that committed the breach. Any liability arising by reason of such breach shall be the liability and obligation solely of the Developer that committed the breach. 11.6. Copies of Notices of Violation. At the time that City gives a notice of violation to a Developer, City shall send a copy of the notice to every other Developer who has made a prior written request to receive notices of violation, provided that the request states the name and mailing address of the requester and the request makes specific reference to this section. The copies shall be sent by first class United States mail. 12. Mortgage Protection. At the same time that City gives notice to any Developer of a breach by that Developer, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, 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 Moorpark Highlands Dev Agr -25- Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance 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 Developer 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. 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. Developer 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, Moorpark Highlands Dev Agr — 2 6— 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 the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until the close of escrow on the initial sale of the last Affordable Housing Unit, whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Expiration of the term or earlier termination of this Agreement shall not automatically affect any Project Approval or Subsequent Approval that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "D" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 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 Moorpark Highlands Dev Agr -27- representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developers, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Ordinance 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute 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. Moorpark Highlands Dev Agr -28- 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. IN WITNESS WHEREOF, Fountainwood Agoura and City of Moorpark have executed this Development Agreement on the date first above written. FOUNTAINWOOD AGOURA Mark Rosenberg General Partner Moorpark Highlands Dev Agr -29- CITY OF MOORPARK Patrick Hunter Mayor 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 Fountainwood Agoura, a California General Partnership, ( "Developer ") and the City of Moorpark, a municipal corporation ( "City "). WHEREAS, Developer is the owner of certain real property in the City of Moorpark, County of Ventura, legally described as Lot of Tract No. ( "the Developer's Property "); and WHEREAS, City is the owner of certain real property in the City of Moorpark, County of Ventura, legally described as ( "the City's Property "); and WHEREAS, Developer and City are parties to that Development Agreement recorded in the office of the County of the County of Ventura as Instrument No. Development Agreement "); and certain Recorder ( "the WHEREAS, pursuant to the Development Agreement, Developer agreed to restrict the use of the Developer Property to certain uses and to transfer all other development rights to the City Property and to 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 covenanter and covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follow: Moorpark Highlands Dev Agr -30- 1. The Developer 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 Developer 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 Developer 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 Developer 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 Developer 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 Developer 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 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. Moorpark Highlands Dev Agr —31— IN WITNESS WHEREOF, Fountainwood Agoura, G.P. and City of Moorpark have executed this Covenant on the date first above written. FOUNTAINWOOD AGOURA Mark Rosenberg General Partner Moorpark Highlands Dev Agr -32- CITY OF MOORPARK Patrick Hunter Mayor EXHIBIT "D" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: Fountainwood Agoura c/o Morrison Fountainwood Agoura 711 Daily Drive, Suite 110 Camarillo, CA 93010 Attn: Michael J. Greynald Moorpark Highlands Dev Agr -33-