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HomeMy WebLinkAboutAGENDA REPORT 1999 0505 CC REG ITEM 10ITO: FROM:. DATE: SUBJECT: CITY OF MOORPARK AGENDA REPORT The Honorable City Council Steven Kueny, City Manager W��- --t t2-100 ( t 0 ITEM 10 .7L—. ' C T r OF M oO RPAR ., CALIFOI�� City Council Meeting Of- 5_JF"°� ACTION: ULLIWACLL-5-11 April 29, 1999 (CC Meeting of May 5, 1999) Consider Proposed Development Agreement for RPD Permit No. 97 -1 (Archstone Communities) DISCUSSION: The attached, proposed Development Agreement is for the proposed apartment project located south of Los Angeles Avenue and west of Moorpark Avenue. The land use designation and zoning for the subject property is currently commercial and is proposed to be designated RPD for the construction of a 312 unit apartment project. The staff report for the May 5, 1999 City Council Meeting for approval of the general plan amendment, zone change, and RPD permit provides additional information about the project. A Council Ad Hoc Committee (Councilmembers Evans and Harper, and previously former Councilmember Perez) have met several times with the developer to negotiate the Development Agreement. The agreement is generally consistent with prior agreements used for residential projects. The specific considerations are contained in Sections 6 and 7 of the agreement. In general terms, the agreement allows the project to be developed with certain changes to zoning code provisions and development standards, and permits a density bonus in consideration of guaranteeing twenty percent (200) of the Im Proposed Archstone Development Agreement Agenda Report Page 2 April 29, 1999 units for low and very low income families and the payment of certain fees as specified in the agreement . An additional provision may be required since the developer will not take title to the property until after approval of the Development Agreement . As you will recall, this is similar to the Bollinger project . It is proposed that the Planning Commission be directed to consider the matter at its May 24 meeting and provide its recommendation so that the City Council can consider the agreement at a public hearing on June 2 . If acted on, it will allow the second reading of the ordinance approving the Development Agreement and proposed zoning ordinance to occur prior to the end of June . They could then be in effect prior to the end of July when the developer is scheduled to close escrow on the property. STAFF RECOMMENDATION: Refer the proposed Development Agreement to the Planning Commission and direct staff to schedule a public hearing on the Development Agreement for the June 2 , 1999 City Council meeting. SK:db Attachment : Archstone Development Agreement M: \ccagenda\Archstone DA 000,E4 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER' S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND ARCHSTONE COMMUNITIES THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868 .5 Citymgr\Archstone DA.2 000€4G ARCHSTONE DA.2 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 ARCHSTONE, a (referred to hereinafter as "Developer "). City and Developer 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 Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code section 65864 et seq. 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 the City in order to establish certainty in the development process. 1.2. Developer is owner in fee simple of certain real property in the City of Moorpark, consisting of approximately nineteen and two tenths (19.2) acres generally located north of the Arroyo Simi and west of Moorpark Avenue as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.3. City has approved, or is in the process of approving, General Plan Amendment No. 97- 3( "GP11), Zone Change No. 97 -7 ( "ZC "), , and Residential Planned Development Permit No. ("RPD "). Implementation of these land use entitlements is subject to a mitigation monitoring program that was approved by City on (the "Mitigation Monitoring Program "). (The GP, ZC, RPD and Mitigation Monitoring Program are collectively referred to as the "Project Approvals ".) The Project Approvals authorize a residential development consisting of 312 apartments Property (the "Project "). ARCHSTONEDA.2 1.4. By this Agreement, City desires to obtain the binding agreement of Developer 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. 1.5. 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. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.6. 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 General Plan Amendment No. 97 -1. 1.7. On May 24, 1999, the Planning Commission of City commenced a duly noticed public hearing on this Agreement and at the conclusion of the hearing recommended approval of the Agreement. 1.8. On , the City Council of City ( "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 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. 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 the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this ARCHSTONE DA.2 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 the 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, delivers 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. 4. Development of the Property. The following provisions shall govern the development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development- Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes "). -4- ARCHSTONE DA.2 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 Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its 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 Developer timely provides all infrastructure required by the Project Approvals and this Agreement 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 the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent A pp vals. Applications for land use approvals, entitlements and permits, including without limitation subdivision 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 -5- ARCHSTOHE DA.2 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. 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 Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, the 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. 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 lets ARCHSTONE DA.2 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; or (f) modifies the land use from what is permitted by the General Plan Land Use Element at the date the Enabling Ordinance is adopted 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. Modification Of Approvals. Throughout the term of this Agreement, the 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. 5.5. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required by Project Approvals 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. 5.6. 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 -7- ® Vi 'may Ora.2 ARCHSTONE DA.2 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. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. 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. 6.3. As a condition of issuance of a building permit for each residential dwelling unit, 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 Two Thousand, Eight Hundred Forty -Five Dollars ($2,845.00) per residential unit. The Community Services Fee shall be adjusted annually (commencing two (2) years after the first residential building permit is issued within the project) 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). 6.4. The fee in lieu of park land dedication (Park Fee) pursuant to the requirements of City Ordinance No. 52 shall be paid prior to the issuance of the building permit for each residential unit. The _fee shall be Three Thousand Dollars ($3,000.00) for each residential -8- ARCHSTONE DA.2 unit. The Park Fee may be expended by the City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Park Fee shall be $3,000 per residential unit. Commencing January 1, 2001, and annually thereafter, the Park 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 Park 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 unit, 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 operative date of this Agreement, the amount of the Development Fee shall be two thousand five hundred dollars ($2,500.00). The fee shall be adjusted annually (commencing one (1) year after the first residential building permit is issued within the Project) 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 by the City Council (e.g., if issuance 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 unit, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by the City in its sole and unfettered discretion. On the effective date of this Agreement, the amount of the Citywide Traffic Fee shall be $3,000 per residential unit. Commencing January 1, 2001, and annually thereafter, 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 IRM ARCHSTONE DA.2 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. On the operative date of this Agreement Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement. 6.8. Developer hereby waives any right it may have under California Government Code Section 65915 et. Seq., or any successor thereto, or any provision of federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of residential units approved for this project to exceed a total of Three Hundred Twelve (312) dwelling units. 6.9. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway 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. 6.10. Developer, in consideration for obtaining a density through the Project Approvals which is greater than that which would have otherwise been available, agrees to provide a total of sixty -two (62) affordable rental units for the life of the project or forty (40) years whichever is longer as follows: A. Thirty -Seven (37) units for Low Income (80% or less of median income) 1. Eight (8) one bedroom, one bath units; 2. Twelve (12) two bedroom, one bath units; 3. Twelve (12) two bedroom, two bath units; 4. Five .(5) three bedroom, two bath units; and B. Twenty -Five (25) units for Very Low Income (50% or less of median income) 1. Ten (10) two bedroom, one bath units; 2. Ten (10) two bedroom, two bath units; 3. Five (5) three bedroom, two bath units. Tenant residency, eligibility, rental respective role of City and Developer, and determined necessary by the City shall be -10- restrictions, any other item set forth in 000F15«.��1 ARCHSTONE DA.2 the Affordable Housing Implementation and Rental Restriction Plan, (Plan) which shall be approved by the City Council in its sole and unfettered discretion prior to occupancy of the first residential unit for this project. Developer shall sign any necessary agreements to implement the Plan and guarantee the availability of the sixty -two (62) affordable units. Developer shall pay City's cost for preparation and review of the aforementioned Plan at a cost not to exceed Five Thousand Dollars ($5,000.00). 6.11. 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. Developer further agrees that 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. Developer further agrees to not protest these fees as may be authorized by Section 66000, et. Seq. of the California Government Code or any other applicable state or federal law. 6.12 Developer shall construct Park. Lane Avenue (Street Improvements) from its current terminus on its 'east side of approximately one hundred twenty (120) feet south of Los Angeles Avenue to the intersection with the new east /west street between Moorpark Avenue and Park Lane to be constructed as part of this project. The Street Improvements shall include one -half of the future ultimate width and shall include twenty -six (26) feet of pavement plus curb, gutter, and sidewalk consistent with Plate B -3 -C and any necessary transition and intersection improvements with the future east /west street and current improvements on Park Lane. Developers obligation to construct Street Improvements shall be contingent on City's acquisition of the real property necessary for said Street Improvements at no cost to Developer. City must obtain the necessary real property within one year of the last residential occupancy of the Project. Upon written notification from City of its acquisition of the real property, Developer shall commence design and shall complete construction within one year of said notice. Final design, plans and specifications including but not limited to whether the Street Improvements will be on the east or west half of Park Lane shall be approved by the City Council at its sole and unfettered discretion. Developer shall also pay City's costs for -11- ARCHSTONE DA.2 plan check and inspection plus City's administrative costs. Within sixty (60) days of receipt of City's notice to commence design of the Street Improvements, Developer shall provide a surety in an amount and form acceptable to City at its sole and unfettered discretion to guarantee construction of the Street Improvements within the aforementioned one year time period. 7. City Agreements 7.1. City shall process in an expedited manner to the extent possible all plan checking, excavation, grading, building, encroachment and street improvement permits, certificates of occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation, construction, development, improvement, use and occupancy of the Project.' 7.2. City agrees that the Developer's payment of the Los Angeles Avenue Area of Contribution (AOC) Fee for the project shall be in the amount of Three Hundred Thousand Dollars ($300,000.Oo) payable prior to issuance of the first building permit for the project. 7.3 City agrees that the Developer's payment of the TSM Fee shall be in the amount of $500.00 for each residential dwelling unit payable prior to the issuance of the building permit for each unit. 7.4 City agrees to allow certain modifications to the City zoning Code and development standards as follows: A. Allow the project to be built with a 2.13:1 parking ratio as compared to the Code requirement of a 2.5:1 spaces per dwelling unit with a total of 666 parking spaces of. B. Allow garages along the western and southerly property line to encroach into the five foot setback and be built to the property line. C. Allow the project to be built at a density of 16.2 units per acre. D. Allow the garages (or carports) along the northern property line to encroach five (5) feet into the required twenty (20) foot setback. -12- ARCHSTONE DA.2 E. Allow the project to be built with one (1) covered space per unit and accept carports as fulfillment of this obligation so long as carports along the perimeter property lines must be enclosed on three sides. Allow the uncovered parking and project landscaping along the eastern property line (Moorpark Avenue) to encroach five (5) feet into the required twenty (20) foot setback. F. Allow the new east /west connector street along the northern boundary to be built to residential standards with a maximum street dedication width of 33 feet for a half street. 8. Supersession of A reement 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 the Developer 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 the Developer 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 -13- 000C,55 ARCHSTONS DA.2 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. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other 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 cured 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 -14- ARCHSTONE DA.2 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 third day following the day after 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 the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.9 or 6.10 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 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 the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, 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 -15- ARCHSTONE DA.2 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 the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the 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 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 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 Chapter 15.40 of the Moorpark Municipal Code or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. -16- 0000 41 ARCHSTONE DA.2 16. Indemnification. The 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, the 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, review, set aside, void or annul this Agreement or any provision thereof, or the Project Approvals, or any Subsequent Approvals. 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 five (5) years commencing on its operative date or until one (1) year after occupancy of the Three Hundred Twelfth (3121'') apartment unit, whichever occurs later, 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 "C" attached hereto and incorporated herein. _1.7_ ARCHSTONS AA.2 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 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 the other Party 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 Developer, 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 Chapter 15.40 of the Moorpark Municipal Code or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and 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 CIA M. ARCHSTONE DA.2 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. 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. Governinq 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. Attorneys' fees under this section shall include attorneys' fees on any appeal and any post - judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 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. -19- MI �611, Ail IN WITNESS WHEREOF, Archstone and City of Moorpark have executed this Development Agreement on ARCHSTONE ARCHSTONE DA.2 -20- CITY OF MOORPARK By: Patrick Hunter Mayor ATTEST Deborah S. Traffenstedt City Clerk By: President