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HomeMy WebLinkAboutAGENDA REPORT 2001 1205 CC REG ITEM 09DTO: FROM: DATE: MOORPARK CITY COUNCIL AGENDA REPORT The Honorable City Council Steven Kueny, City Manager ITEM q. D k• . . . , - of AcT":'-: Con +wluGd- wbltc...__ 8CarvTp��n. 1�- lq -�eol- November 29, 2001 (CC Meeting of 12/05/01) SUBJECT: Consider Development Agreement No. 2001 -01 for West Pointe at North Ranch (General Plan Amendment 99 -01, Zone Change 99 -01, Residential Planned Development 99- 02 and Vesting Tentative Tract Map 5187) on the Application of West Pointe Homes, Inc. BACKGROUND West Pointe Homes, Inc. is the developer of a proposed project with 250 residential units. Under another agenda item the City Council is currently considering approvals for the project including General Plan Amendment (GPA) 99 -01, Zone Change (ZC) 99 -01, Residential Planned Development (RPD) 99 -02 and Vesting Tentative Tract Map (VTTM) 5187, and the related Final Environmental Impact Report (EIR) . The project if approved by the City Council would supplant existing Tract No. 4620 that approved 66 five -acre lots for the property. A Development Agreement has been negotiated by a Council Ad Hoc Committee (Mayor Hunter and Councilmember Wozniak) and staff with the developer. On November 7, 2001, the City Council considered the Development Agreement and referred it to the Planning Commission for a public hearing. On November 26, 2001 the Planning Commission considered the Development Agreement and adopted Resolution No. PC 2001 -419 recommending approval to the agreement to City Council. DISCUSSION A draft Development Agreement for the above referenced project has been prepared and was considered by the City Council on November 7, 2001, and consistent with Municipal Code Section 15.40 the City Council referred the Development Agreement to the S: \City Manager \Everyone \ccagenda \Westpointe Dev Agr 1205 2001 cc mtg.doc �3v ' ..�- Honorable City Council Agenda Report December 5, 2001 Page 2 Planning Commission for public hearing on November 26, 2001 and set December 5, 2001, as a public hearing date for the City Council. The City Council also suggested that consideration be given to including provisions for usage of photovoltaics (solar energy facilities) in the construction of residential units. At the time of the Planning Commission meeting, the Ad Hoc Committee has not yet negotiated this potential provision with the developer. On November 26, 2001 at a duly noticed public hearing the Planning Commission, after considering staff reports and public testimony, adopted Resolution No. PC 2001 -419 recommending to the City Council, approval of Development Agreement No. 2001 -01. The Commission provided a number of edit changes, which will be incorporated into the final version of the document. In addition, they expressed strong support for the developer's obligation to actually construct the affordable housing units. While not specifically related to this project, the Commission discussed the relationship of fees and processing time to affordability and the continued affordability of units initially sold as affordable units. The Commission also discussed photovoltaics. It was a consensus that it probably was not economically viable to use them at this time. They concurred with staff that it may be more appropriate as a project condition after more analysis including the availability of state or federal rebate programs. In addition to any changes possibly needed as a result of potential modifications to the mitigation measures, at this time there are two primary issues that still need to be concluded. The first is a decision about "A" Street. If it is to be ultimately connected to the east /west arterial street, should "A" Street be considered an arterial or collector street; should it be built during build out of this project or deferred until Specific Plan No. 1 (SP -1) is considered and constructed; and should West Pointe Homes be required to build "A" Street to the east /west collector (or if it's not constructed then build "A" Street to Gabbert Road) by a time certain regardless of the timing of SP -1; or should it be the future responsibility of SP- 1 to construct "A" Street beyond the limits of the West Pointe Honorable City Council Agenda Report December 5, 2001 Page 3 project? The issue of "A" Street should be resolved as part of the Tract Map approval. On the matter of affordable housing, staff is working with the developer to modify the language to clarify the determination of affordability and to use references to applicable state law. SUMMARY The City Council is being asked to consider Development Agreement No. 2001 -01 along with General Plan Amendment (GPA) 99 -01, Zone Change No. (ZC) 99 -01, Vesting Tentative Tract Map (VTTM) No 5187, Residential Planned Development (RPD) No. 99 -02 and the project Environmental Impact Report (EIR) being considered under another item on the City Council Agenda. STAFF RECOMMENDATIONS 1. Open the public hearing, take public testimony and continue the public hearing; and 2. Introduce Ordinance No. , for first reading at same time as Zoning Ordinance for ZC 99 -01. Attachments: 1. Draft Development Agreement SK: LS: db 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 ter -MGGRPAR-� P7 .rt TJ P ;-� ^ it T7 Tl L r " T' T \T T 1 i-t--r iiarf- `� �{�`'-111.•L' P � . _r -- CG-R r_ —:7 N _ ``-t c _ 7 �.`: �- �-T- �-�-^ D •L. �`_ J-- '..' -L—��. CY�GiT__C'�CU T�TC T' (`fIZ�J���pC n7�T'L 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 W�'8, P�'-N_'- HOIV -5, __ NC., a Nevada ' crporaticr., I.. era l the owner of real property within the City of Moorpark generally referred to as ves�i._J en�aive ract �•ac 5-187 Ne. (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 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its 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 the Eha= eeiei_ _. `'eeeif e P N Final Environmental Impact Report ( "the EIR ") for the P o ect A prevals as defined is subsection 1.3 0` his Agreement, 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. 9 - - 99 -C,; ("GPA 901-19E; 2111) , ar1T� —wee -i -ter —N e. z 2" ; for approximately 4-1-5350 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. 91-4 -99 -01 ("ZC 9�; - 499 -1'1) . —.3 Iii ` _ l v z C i� _ cr? -T , GP---9- an-d -Z G 9r 4 G PA 99-1, Z C 99-1, Tract, 5187 and RPD 99 -2 (collectively "the Project Approvals; individually "a Project Approval ") provide for the development of the Property asp- ;i,.ast ^v iel anise and the construction of certain off -site improvements in connection therewith ( "the Project "). 1.L_IF�1. 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. 1.50. 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, eae-i 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.�. 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 1.?-4. On 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 -9. On Saetembei= , = , the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing approved the Agreement by Ordinance No. � - ( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may also be referred to hereinafter as "the site" or "the Project - ". West Pointe Dev Agr 2001 -3- 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 -a-r,&a that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which a Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.2. Release Upon Transfer. Upon the sale or transfer of any Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the effective date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, deliver to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to West Pointe Dev Agr 2001 -4- 5. those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes "). 4.4. Reservations and Dedications. All reservations and of land for public purposes that are the Property are set forth in the Project d this Agreement. dedications applicable to Approvals an 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. West Pointe Dev Agr 2001 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 -5- 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, 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. wcs- ?o:nte Dev Agr 2001 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 1�r t 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 grades greater than 20 percent, including without limitation Moorpark Municipal Code chapter 17,38 or any successor thereto, within the Property; or � ---ppa p an i-F.- �i-�s � ���; e r- - (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. SYen 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. Wes[ POInLe Dev Agr 2001 -7- The term of any Subsequent Approval, except a tentative map or subdi visicn improvement or other agrecrr.e nts re?atinQ to the Project, 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 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. '.lest Pointe Cev Aor 2001 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 the Ylcorpar Unified School Disur�ct: ;MUSD) , or any successor district, shall be deed restricted in the form of a covenant running with the land, as set forth in Exhibit "B" attached hereto and incorporated herein, to limit use of the land to public school facilities, kindergarten through 12th grade, and the covenant shall be recorded in the offices of the County Recorder of the County of Ventura concurrently with the deed transferring fee title to MUSD or a successor district. 6.3. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its 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 -­-�G`_- __ n Prooerty, 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. 'Nest Pointe Cev Aor 2001 On the operazfve e-f-fee= Ave -date of this Agreement, the amount of the Development Fee shall be Seven Thousand Eight Hundred Fifty Dol larsThree -1:i gel l-arc ($7,850.00:7,3C�G. -&a) per residential unit and h_rty_ rive Tnousan6, Three H,;ndred -- enty -Five Dollars ($35,325.00) gyp= = we _ _A rEd-F --f- Bellazs 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 speei� -e P;an- 9S 2 Tr_acr- 5_ 87 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 See"f =e .- -.:rr- 9S 2 --ract 5187 (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 SpeeiT =lam Prooert_y, 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 effe t- .ive- operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Four Thousand T.M o Fundr ed_ ^ray Dollars ($4, z r0 . 0040�CG) per residential unit,v and = }teen \i ^eteen T::ousar d EighL , Dollars ($19 080.100-8,91"10.9e) per acre of institutional land on which the institutional use is located. Commencing on January 1, 20031, 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 west ?o:nte Dev Agr 2001 -10- K 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 Seec-- � = --Pq-a-Y Property, 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 :,`rty Dollars $ 2, 0 3 0 0 0; _ F ve ---= :e -r-- Bo =a _ 0 c-�Tp e r residential unit, and Six Thcusar_d Four H-:nared T� :enty- C: t D o l- a r s ($6,428.00) T w e != e'zi s a n d ,,- -1 u`6 —iTu! g y-e- d tp Del tars 4 -2, 2AiG - :-G-9-�—per gross acre of institutional land on which institutional use is located. This shall satisfy Deve-ey er' s Casey Roa_o /Gabbers Road Area of ontribu"-ion 1ACC cbl uatio_, for the Property_ The City may use these mon 1es for anv purpose related t -o the Casey R; ad /Gabbers C;_ _ Road A or any other awful curocse at its so--e and unfettered discretion. City agrees to accept these payme ~:s as -ull satisfacL-on of Developer's obiigat_on to nay Casey Road /Cabhert Road ACC fees. Commencing on January 2005, 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 4une— Septe7-:ber over the prior month of September. 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. — _ iFE'q�: reLt, — DL1'v`E�l-ep e f- sf-,c -1 1 o r a i _`. a ^ o. r _s c r =v , :ti-c-r. asemeii!-: 0 ic}• -e rec --a±9 im:hie- -Ie-�S�- :ebtin as gip.^__ Spaee i r3 e aging i p r rg ire a s 10, 1-1 , 14, ; C e!:4y �-=?gese -id -e 7 s iew r as— eer-m± LceEi t�he�E'er ' { Rat i e xs o f tiae G_ =�:� c c. —moo West Pointe Dev Agr 2001 — 1 1 — _ u. _ i � asa�t�= app= _ . d -- a Ei - n epeL-atiens) •- -- cJ--, -oy -- 1 l F e 3kve±errs 6 S ei-1i) ee — ?P _ i s .. b s e e tc=: v" —S=c -3 t?- I tiF?e{- rrr- -- roc v -se rvu - - _ ease -ment sr -al' be _ eerded nY, wi;E -- re eraaE ien - r-re- --f�r-sE a-?- =�ac�- ; Ems - PtDpei�t. y a!? fms shall be in 'u e- rA _ ? G. e See-1-i — Fi - el�- 6.8. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Protect Approvals, E- he- Geee�e -P-lan and EIR. - - - - _ 6.9. Prior to the issuance of the building cer.mit for each residential dwelling unit wit1.1 the Prooerty, Developer shall pay _a fee ir: =ieu o_ f -_tae deaicat_ ion of parkland anu related imorovemients (P-ark, Pee; On the operative date of this Agreement, the amount of the Park Fee shall be Dine Thoulsar_d Dollars (S9,C00.03) for each residentia= dwelling unit and _fty Cer:ts (S 5,0) per sa _,are foot of each bui ldira used for i,ns_t i tuti.onal n-urocses within the Property ' - -he fee be adjusted annua -Ily commencing one ;11 year after t'le rst residential bui =ding nermit isf issued within Tract 5137 by any increase in the Consumer Price Index (CPI; until a_1 fees have been pain. .'he CZ-711 increase sha be determined by using the information crovided by t -ne U.S. Devart men-_ of Labor, Bureau o _- ' atir �. Sati sties, -o ail urban. consumers w 1 � h I t: ^e o krraeles /Anahei?.1 /Riverside ~etropol tan area during the prior year. The ca_culation_sh_a i l be made using the month which is four (4) „onths prier to t:.e montr_ whicr the first residential building permit is ,ed within_ Tract 5187 (e.g. , if the permit issuance ccc.:,rs i--^ October,_t ien the moat.-; of June is used to calc:�late ...e increase). In the evert there is a decrease in t,-.e referenced index for any annual indexing, the Park "ee s'-all remain au its the.: current amount until such time as t::e next subsequent annual indexing which resul-.s in an increase. - -... -- - - - -- - -- - -- b+ = h Fi E 2 b e ::;i? : Wires of '�- !h1 _ _ siiall dedieate -at t-s3 sele eest and e- +pe -nse, -=he app-ex �e -seven l:7) aewes -e ` —phic- c FEi e=Te- L 1- as West Poin_e Dev Agr 2001 —12 — 'TI CD 44 44 14 4 14 A It J 4 '14 L! I 4 't ru 4 4 4 4D 44 it 14 j r L4 It 4 51 1 5 4 A )4 LAW (4 I 1-If f 4 I Hj Or Qr n. t cl, U: Vin' 14 f 1 0 1 'IN E4' I I 1-If f 4 I Hj Or Qr n. t cl, U: 15 )4 f 'IN E4' I I 1-If f 4 I Hj Or Qr n. t cl, 1 I) ) I' 3 JJ 3 I i 4! ,I I tJ i f 1 1 I I I , I ! I f I G) 94 1 �: t•: 4 1 t i 1t4 I) l no I V fJ I. I ) 1 •�I 1f I I 1 I, 1 q r I ') I 1 fit) �\!!- I ', • I 4 J , J IrlY l J1 rlrl -,I ,r .J m3 + I J 4 { ; I r• r3 .j J J J ,{ I r+ rG �rl 'i ) J ) �� �+ �'I 1 • -1 ,I c! r, 11 1 J1 • ri 1 ) I S ) 1 ,•I ! J ) 1 04 ) 0 0 N O, Q d U C O a N U f I I r- It • I r i r . c � 1 s I) r) 1 4; !r t I 1 r- I . r' a .+ d) r-IJ ; i - 1 41 1 u C� J I 1 �r I I 4 .1 I1 l 1 (J I ILL t + { f ( r t3 y) J I J ! •1 no I V fJ I. I ) 1 •�I 1f I I 1 I, 1 q r I ') I 1 fit) �\!!- I ', • I 4 J , J IrlY l J1 rlrl -,I ,r .J m3 + I J 4 { ; I r• r3 .j J J J ,{ I r+ rG �rl 'i ) J ) �� �+ �'I 1 • -1 ,I c! r, 11 1 J1 • ri 1 ) I S ) 1 ,•I ! J ) 1 04 ) 0 0 N O, Q d U C O a N U f I I r- west Pointe Dev Agr 2001 1. of FIt�- tom` h e _ _ _ .. -t- =L= a0� aza_ I-eE_, OF �rP. e e e fie Plan -' =i e e E = : i-e 6-­_ E -r F f ��= _ _ - _ YL3e= v'dirr- c�- r —r-��� ---r -_ -c�l -= - r'�a'3 .. - e -and - _ t�e . . zr�1 EI- -e e t - - Ee Y -T: e -af: . = a'r a'� -3 a 9 d wa tc —1. _ ea 6v e G E e r a ,,�9 saw _ -b be ei e�.-d ed �e t --_:EhFe =any -r es=ter ei� we=e _ r- �zxt-trre -a3 s e . Developer agrees that the above - described cayments S FtC� -i•.� = zTI e- -',a Ce el i- e a t ? e n &f­z e� dc = eafk land--shall be deemed to satisfy the "Quimby" requirement set forth at California Government Code Section 66477 et seq. for the -.Prcper-_y. a --- --ee-E}e -it-� sia d3:yisueen maps w i�: in =h: C-;eeerf a:e Plan a er res= eY� -?a �T,_ — Develear _ =-e ,,, e n ! ` n t : and L�E'� eHcl z er :Rae E'er .. -t"{ _ ear .: �. =r - u�-�ee*=- =e-!' -a-n area. ter: y uri± eese eF _ fz-aed a*:b- s H bs eeEien in r E-en- =-©-tee a= El F-,-AReen_-;,ee -teese r _bey met , _ _ a =- sele a ­ d e rte= _ --n the air-.eunc ei - r� -� Qi `cc-z ? � a "a l l ars f ^ , ^ f=-nd —;�I­ e rep]�--iE -we rte -e f t Ile—e aT= E _.__ Payweat a :. _ be . e-p e -t-� e e eee p a-n eft -er the z -�� d _ ei:ib-ie streets c a?c'? —e s ` .. = r `' t = _ - - ems= - o f w 1 i e t h Ci� e a i el -` =Lem L- S- a- e- desi-Q =-ate 6 as st-aidayd ` -at- neludeo a eur- 6= teeu',_i ~ L-rreen 48 eet- ca =d --6 c@ =ee� a` sel Ord u,n ze rt -eyeEl ere; -ieF- _1= -0-r - vide _ et v u _ : i i i = �7, -i-.: C ..`- rsi -"i'es, u- :- Ye-- -t� 4-!:! _a"f3eL-9- i!i EtL -15- eas~ E.we (2) travel laiztes -and rare £ -P 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. 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 seq. for loz o 1 Tract 5187 lz-nnIne Area 12 a= -d-z3 to insure this area remains as public open space and shall, at its scle West Poirte Dev Agr 2001 -16- cost and expense, irrevocabiv offer z�o dedicate -lot of Tract 5187 to City. II1 addition to the required irrevocable offer of dedication and granting of a conservation easement descr_bed_above, Develocer shall at_ its sole cost and expense provide City a cash deposit in the a=mount of Doll.arsj S ) to fund the management, maintenance, and related items of lot tc- be expended -bv City at- its sole d -scret i on . Pay; -ent shall be made prior to occupancy of the one hundred fiftieth 150 -) residertial unit for the Property. Devel_oper_ shall ace improvements at -ts scie cost and - ex-Dense to the -,rall staging area on sot of Tracr, 52_87. The =_ mprovements shai -L be as determ -reed by the City at its so-_e discretion: and shall include bu -:et tie limited to the followi:o: prep ration of a site elan, grading, .installation o a parking lct . ;ith paving material as determined by the City (eit._er asphalt, concrete, or decom_cosed granite, or similar material) , water and electricity services, security lighting, and fencing and sates. - mprcvemenl.s s -all. be complete-:_prior to the first occupancy of a residential unit for the property and to the satisfaction of the City . - - — - - No excavation, drilliny, ext_action, cumping, mining, .or similar activity shall be allowed in any portion of the Property zoned Ocen Space._ The Iimi tat .ons and exclusions described in this subsection inoitided in the conservation easement. The co-servation easement shall be recorded concurrently with recordatior, o= the first final map for the Property and shall be in a form acceptable to Ci rid consistent with Civil Code Sect�lon 815 et seq. sisal _ be 6.14. Developer shall <rov -de fifteen (15), four (4) bedroom and t_wo bath sinele family detached units with a minimum ct 1,200 soua_re feet f and a maximum o 1, 500 sc sare feet to be sold to buyers who me_ez. t_he criteria for low Income (80 percent or less of medlar- income) and ten (101 , four (4) cedroom :-D.nd two bath single far.t,i -'y detached units_ with a_ minimum of i,200 square feet and _a maxi-num of 1 , 500 square feet to be so--d to buyers who meet the criteria for very lot. income (50 percent or less of median_ income). Prior to approval of the first final map for Tentative Tract Map No. 5187, Developer sra'_1 acquire an approximate twe -acre west. PoinLe Dev Agr 2001 -17- ck West Pointe Dev Agr 2001 ^arcel wit: in the Moorpark Redevelopment Acency prcject area on which to construct the 25 referenced units. The o reel. gust be zoned _arid : acre an approved land use desI' a_a.cion to allow construct r of the referenced 25 units oricr to aporoval of the f � rst `inal map fcr Tract Mac \_o. 51_87. The initial se -lino -_rice for the 15 units for low- _ncome buyers _shal- not exceed $ ;low income sellira price; which shall be paid to the developer at the -ime of = ii�t_al sale. .he i ti a selling pry — for ne 10__ n �s_ for lo�7- income buyers shall not exceed $ very low ir.com:e_sellin^ price. , which shall be _-aid to the developer at the time of initial sale. `il-:e difference betwee.i t e sel I ir-ci o--ice and n- .ar- :.et value shall be retai=ned_ by Citv as a second deed o' trust City shall ccn'_ro 1 the resale- -_�` an of -_ ne :_ni_t_s .— Develocer shall pay closing _costs for eac:i unit not to exceed $5,020.00. Developer si,a.11 be responsi ..e _`or ` ^e A. Processing of =-_, uding but 7inal :yap and Permit �'RPD!. Citv required entitleme^_s not li;iited to Tlenta.tive :'ract and Residential Pla: ned Developee?,t B. rrocessi na of General Plan Arnenci;nent, Gore Chance, and environmental docu --ent (up to ti` \D but no _ -- . - - -- - C.- - Pay all City capital im:Drovement and mitigation fees. Qu_i_n•' v fees sha_i be S3,600 to be increased consistent with CPI beoinning three wears after Tentative Tract M.ap ac_croval and increasing annually thereafter. D. Grade the site cer- approved map, _install all utilities, and construct all Cublic and private --nprovemer.ts co.,sistent wit : City standards t. }- lcai for s_uci- subdivlsior.. The first `en units (6 low, 4 verb low) shall be constructed and occupied prior Lc the 50`" occupancy ir. Tract 5187, anc the next 15 tiniLs (9 low, 6 very to.�:) stall be constructed and occupied prior Lo the occupanc-\ of the 150 unit in T _-act 5187. The - initial sales rice, market value, buyer eligibility, resale restrictions respective role of - _v and Developer, and any otr,er item ceternlir_eu West Pointe Dev Agr 2001 necessary by the City shall be set forth in the A_`fordabie Housing Implemen�ation and Resale Restrict ion Plan, which stall be approved by 7:1-.e City Council in : ts_ sole and unfettered d_sc.retior_: prior tc recor,iaticn of t'Ze first inal Tract .Mac -or -- s prop ect . The Develocer and C_t y s:-ia- l , y cri_or to the occupancy o= r_he first res ides r. ial for ttie Pro ec-_, execute an Affordable Housinc Agreen,ent thar_ incorporates the _!_:%n in total_ and I's cons_ste :_t wit' this Agreement. De.yeloper s all c y she City's direct costs for preparation and rev-eLr of t-e Piar: and the Affordable_Houslna Agreement up Lo a - aximum of Seven Tro-asand, -,e Hur:dred Dollars ($7,�G0.00> - -- - Dez7re'.eperei-a == bea erevide -cwe ge eon. feet- rn s-± z e , and h i i­c eci:-- -C -! 3:4�ts--_z `- (4' ,�e� � � and ems„- -... -_ e rze- .e - be g e = a-t a --q':ecyt-:: t�he er±ce r±-a- -€ e`r -_ew ± = eef?3^c efffiediaA - ±?=eemeT - -_ ::e —=ni tsar �z .-+ r f :R by -- he .itzy shall be �. mi l- - L r . . e . - - b -. nTy��p -�i�?� _ l xet�-� ei t�e -i ecv reu = 8, - 2 tai F ; _' sr -? -'? l T i,: a-e t �4 a e i-e r Lc e. P=eg =- -t prat Affe res±aer-*zm .±a1 icin= , b l fig te�- ehe ;:i� eet- , epee i:A E e a . 14' rc' S _ e i an s ee n £-ee ear F s i s tee! i -- i �g-ice ement�—D ems., e l e per- -eh a l ! pay .. n e-e i t�yls e ✓ - €e r f ep a ±en- and - e v ; e w e `_ n el ai'- a=d x-J�Z_C r E up t-e .: r-Tlia-x- sufi d -�-ri -G = S --.,: �^- � -t: � �TT-ir -czcr e ± t� t Ei-_`": - f'.3 -- -e f. Z -e-_5: -a 7) l l Ong eIi e-f __, v'e h u n dQ- .dT a i Q e even� t-?3 eiawe " !g ' h : e✓. _ pay r: e 1:-yt-_q e - C -t= _ - 1_-i e-� e snall -be _ _ S£'eL to r^ F6 i c- c sed _- N r/�teE ' P-r _ ri sifqEj af feL-6able - -ce —'r -i-ew Ffiedei�:ate raceme- aeuse}:elds he _n Li = Fee in o=re a- m-o e n� -6 L .:he-- r 1� srd - — i+ -2eEi � i d and D1 er ?e -6LT _' , -c rg perR--i fey 'Five �e pa p r � -.t l _ i � ±*9--tianee o f -r he P r y =. GeiiiT":t. _ _ J en Ge r e r e-r 2, -2 G O. , G—e_a-� n% a4-1--y t T - = , —iTr` �T"r— �.-S-e � � Fee shall D e —U�CY �'- tC'S'Z� -���: ¢ --G= - I -19- amiaerease the Gensk:irr-.er— PY'e•c index -TCP!) , , in _ e�ci —Fees have --- been e %a- cd. Tzti-re inei�:ease— 9e is ` 7 by ? the inf e'_ F.a c . e:1 �3rt�E�Ee C' - _ .. f —r= cH 2 9 ,ci ire a zi -e - -Z Frce 2�- area aizi pi-:±e-±- The l e =sa=vz - siia _ _ amt e .- =, pries= re�l -t-lq e€ Ine. i . the T .:z Ith2r��.y-c eu '' e t -3�F ' r? r� a iTCTt- 1 e - grte -a Y =ire : ran � - rc^ ^ ^��- c "-c alb -nua Tndex1`�9- �i h=eh� .��.�, ...- -'T�.s n a-!a� -. _.. i e - 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. ao -_eee "ice a = l- q trams t y f eee ; _ f e _ _ nc e d- a —T : e �p� _ _ y e a -- e 3 t-1 -e -d-- i . r a nee; --'4 i t_ _ ret_ r-a m , a-Lce ee om -- ef a u i _. permi f er ea-eh -tesi nt_,'_tea =3 e ms=s - e- bo=}nd r he =- s n. Developer alp - agrees to pay to City an air quality mitigation fee, as described herein ( Air Quality Fee) , in satisfaction of the Transportation Demand Management Fund mitigation requirement in the Final Environmental Impact Report (EIR) for the Epee Property. 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. West Pointe Dev Agr 2001 Ar any time at its sale - discretion, City may require Developer co purchase eCu_pmenc %,enicl es, or atne..r _terns, contract and pay for services, or mace i~provements _`or which Developer shat_ receive equivalent creait ac ins: iutare Air Qua =ity .lee Payments or refund of prevous payments '_ne Air Q_•aality Fee shall be Three_ Hundred S_.xty Thousand Nine Hunared Fifteen Dollars ;$360,915.00) to be paid pric_ to the _issuance o` _a building permit -..or the first residentia= lln.it .n_ Tract 5187. C_ommencinc on Jar.�ary 1, 200.5, and annually cherea ter cite Air uual _ ty Fee shall be adjusted by any increase in the Consumer Price index (CPI) until all sees nave been -20- oaid. The CPI increase sh_ail be determined by us= ng the in format ion. provided by the U.S. ueoartmen!l of _abor, Bur_ eau of Labor Statist i : s, for, u-`-an consumers V;I in the Los Angel es /Anaheim /Kiv_e__r_�s_ae metropolitan area during the prior year. -.e ca_C-"latic n shat_' be :Wade us_.rg the ~:o_nLr: cf Se;Dtemhe= over_the prior month of Seotember. I:, the event there s a decrease -n the CPI _for any annual ndex -n:,, the fee sh_a11 remain at its thee: current- amount until such t -me as the next subsea_u_en' _a:.nuai results in an increase. Fe—Y i�es, cl . ..._ ._.' jee;. i .. _. ._ _ -- - --he —e a R-.._ f e r -all eF cE'S e°Llc I _Pl�?3ed Deivc- _ez?me.,r - -Z-" - -- - ` na .5_ �..._.. �e-- e'c.-l--c =>�--c -`tom -a !�. .,. i ._ � O-'.�i': 'z--r_ V e— - iagee- erg -- __- 2 _ _ __. Ys PD 'ti�d �-�- spa _ _ ene -e-� —= e-r ` h��e r- ��- a- -= :��� --n��: � - - -.-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. - _.. Air Quala:L=y -_ be the 2i s ,t de 6.16. De- :-e � eeer - ^,1:al I install 11 f eF,e i te=e lands- _ lJ ti--.e east side ef - 'sey —= 3 Saeh- -' _ if ene - -sa l --Pe j---1 e e k w l _s —= r-SL-a l l ed w i� =± n S eee - f__ Pian�LCT —� a nc the l,i a ea r ac=e ._ - b�Ye -Dues e Ceu. ; ,e-.^ e ;��!? w i — and laiiEissea ii:Q —s cn reee e i= =z e r c e---c ire k_e€ --rte- __ __ _ r i c r t c b o t t.tze_ issuance cf the first resident -ai building perm -_-. and grading permit for the P_rooe_rty, Developer s}:_ail submit _a_ a' gain aooroval from City Council of an I:nclementation plan. The Implementation Plan shall address tre recuirements for hasin� azd construction respcns.:b_i -ties of _ Develooer and any successors including sureties for performance for all radin: construction of -storm drains and utilities, private and. public streets,_ and other private and public improvements on or offsite required_ by ract 51-87, RPD 57-2 and this_ Agreement. Tze_ approval of the Implementation Plan shat- be at the City Council's sole discretion. - — - - - - — West Pointe Dev Agr 2001 -21- 6.17. Prior to the anpro%al of� he firs fir.dl map for -Tact £`?' any =t:t appl� — 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 Developer's obligations and is subject to City Council approval at its sole discretion. == D _ cu e e s a ;Es -s e i -e- -c-0,q u a n-ei e)Epe =moo th -ce- C. -'--C 'it^ -i mss sere — 6 i s e i e t-, -e iq —ra e I e d i .9 ei hfc.._ n. e z: e d tE e Read, S---, et/Gpj:in Read -, iii" S et /-T.-..-,a7 -i d ee - p�' i�CCy c:'.-2y e r- -tip a e a ! 3��r- �'?�s�_ 6=- z c S t r eer=�S p i -- q ReaEi. plans Sze&& fieatee? ti shall . and =- F:seee�1e _ R -. i ive eesus. 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 - �:n F�-eeeifie -� on Lhe Pro -erty. 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 West Pointe Dev Agr 2001 -22- owners, or if the assessment district is invalidated by court action. Prior to recordatio : of the first `- :ial mac for the Property, i_f required by City_ at its sole discretion, Developer shall also form c::e or :.ore oroperry owner associations to assume o%vnersnlp and maintenance of open space land, trails, stc:fm %•:ater detention b_asirls ai related ar_s.inage faci '_z�1es, Landscaping -, ccess road to wiater -ank site, a-6 -er amenities, - and to comoly with the Nat_ona- o_ -'-aL Discharge Elimination Svste n (\PDESi requirem.e. -ts of the Pro4ect. ^he obl -gat ion of said property o�tiner associat ns s ^all be more specifically defined in the coed -ticns of approval of Tract 5187 and RPD 99 -2. 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 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. De;re ll epe-r shall f ei-9 —erne er _ tea`- ek%TIer ezei.ner —s a:p and s e eeit-e a l -- ± _ _ _ _ . . te-p tr ---:y- Developer shall pay the Los Angeles Avenue_ Area o` Contribution 'AOC) fee for each _ lot and inst�tutiona.i use prior residential _ _ `__ °__.`he issuance of a building permit for eac?i lot or use. The AOC fee shall be she dollar amount in effect at the t -me of issuance of z:!-:e bui ing permit For each residential lot and inst-'tutior.a) use. 6.23. Fit u:�- = rights o f v. -€ e= -G - e-Re u t e 1±8 and G t -fie RE''c' ce--23 , as S- iv^'da'r? 6:' c-hi - -Se cc i _ = e PlGn- U�'se Map—, ��taL be- e€€e�Fed t ea-b•= -a-ed_ ,ted t th West Pointe Dev Agr 2001 -23- L G i t-ly in a - Z .--- .:ey. -Prior o aoproval of the firs`. final r:ao for `;'ract 518? or —is S,-, n c e - �r a aradi -y —permi �: for the _Proocrty, whichever occurs first, the Developer shall pay e t ^e City Dollars (S ) to satisfy the Final EIR Drair_age, Sediment Transport, a -a Flcod Control Planning Mitigation. Measure 4. '7--is pay -ment may be expended by CJty in its sole discretion. for drainage and flood con-rol purposes. 6.24. 9e;ie � epees spa±± - _ �ver' 1 e -- a-?" Z (`sS= e we--t. e L- -- f-Lj reaE siz�.r e E=- t t:: eFl t a Ei'vLe � =aet —e i,: pa-rc e!! ma f e �- Lz r e—� to approval of the f li St f �nai for ul,e 7roaeri:v, the Developer shall cay to the. City One Hundred i.ousand Dollars ($a.G GCG.OG) .o satisfy tre F__nal SIR Biological and rotan` cal Resources M-4 tigaticn Measures 5. 18. , and -9. Tl'_is pay�:enE. ma%- be expe:.dec by City in iis scie discretion for oce.i space acauisizion and maintenance and habltat restcratio_l and preservation. 6.25. z €- -p-e t e i ned ' s—s ew —d-i e i- e t= ee: awe l b l e ek w a, l = �=e r-e- he _ b l- eta a =` = - = - _ a E the s eat' ease eery �, of z =g��a� - n C= ?'l _ . —D F e l epC s h __ eene=-r u e t i er-r inel =au 1 t y e E t--S. 6.26. De- leper shall ar its sele eeee -a n El e`x c ewe tz he ex J: Ste'_ a b l ec . - I / f `?ire= af:id- -Dens ?'fie i :—S? =� b l-ee k- w a l, a l eri ii-fie —wc-a s-,ete ei - Read - -reffi es- 11eeeles — Ayeizii:ie r- eL i�h -as= arc a — :eulh of t-C-e -Unien Paeif ie - ra_=read ---4' YC —.q T7- - --shall –�e-�= }C feet. - C4-- e�Z-QC �a Ertlee� i ei ^z h ^ _ 6 t the � '9 e] Read sidewalk. ---- r�i?u1 —ee9i � � }S- '�llEi etc z e�a `cTeiYS -=n r :_Ti -ae -a-aere ve d ky alt _' s sele D e3d e l e ti e r s a s e &E-v eest-s. Developer. shat ' constr=� "A" wes: ?o:nce Dev Agr 2001 -24- Street fre-;I "E" Street -o t'r_e southern bounaary of Tract _5187 prior to occupancy of t::e one hundred sixt /- f -ft'. (165 ) residential unit of -Tact 87. n addition, "A" Street shall be extended Lc the clanned east /west connector (formerly SR -18 Bvcass Rcate) a ?:3 said connector shall be extended to Gabbert Road ai the sa: -e t iT.e as "A" S` rcet i s ex-tendea to . he ract 5i87 boundary. The desian, plans a!-,d sc -cc-f_ cations for the above - referenced improvements si-ia,11 ue acprovea by C, ty at its sole d1 scre*'.' on. Developer shall a-so pay C ty for its plan credo, Inspecticr a_.d administrative costs_ reiatea o _the aesIan and cons:_- ruct lo_: of said imp--- ovements . Developer shai.! he eliaiale rot 01-0 r to re r'."zurserrents ::rcm ot,Ler deti-e .ocers as determi1-_ea by City a` its sole aiscreticn. Developer small provide a rely in an amount and _form deter ,_ned by C= tv at ins sole d_scre`.ior__ obligating Develo_cer for t! e_ 10 ter:;: -rai rill erance of "A" Street and t::e east vest co ^r:ec',�cr road a -1til two years after `he occupancy of t�he _ast reside: t -La-',. unit i : Tract 5 =67. T_h_e obl iaat.io s -a -- orov_de for _ _C -year IiFe for "A" Street. 6.27. ?{? r a i t i�l- C r Vie'_= �—d c�ic�� tic t Arreele Ave- e- need -b;=^ fe ee i- elat-:eEi sliepe -a -gel °j a ie -E c�wentc fo-� z f ,a n d-ed sire e •E ' E_ m e _T-s -T n -- vs Angeles; �a ncc b) any - predea�te a - �iecs(� Read ne E'-e sEi�:i IeEed i -- ve=vteleeem!-� as ic et t- ii e eet -Pr_or to issuance of the fIr_st residential building., permit For the Property, the Developer shall pay =.o t- yi`y Dollars {$ _ _ -- to satisfy : ne Final , =R Traffi_c•_ and Transportation v ig Lion Measures 2., 5 and 6. and Pam — Services_ and Ctiiit =es Mitiaatior :Measure_ 2. This cayne:_t may be expenaed by - C;.tv ir:_ _ts sole aiscret i on. Developer agrees t:-at no .ore -ha r._riety- .linE, (99' resiaer_tiaJl building permits -ni' :e issued fcr the Property until the intersectio_, of Moorpark Avenue (SR 23) and Hiaar_ Street is. e;idened _o provide dedicated t- rougi:, right -turn, and left -turn lanes for both the north and south lees of the intersection, a _dedicated _right Mane for southbound Wal:ut Canyon Road at Casey Road is t .consructed, and the t im'_ng of al i s C'ma1 zed West Poin -e Dev Agr 200: -25- intersections frc-r. Spring Road /Walnut Canvo_, ::cacl south to Los Angeles Avenue /Mcoroa.rk Ave,----E, are svnchron .zed consistent with glans ao roved b its sole discretion subject to Caltrans concurrence. 6.28. Prior to occupa:icy of the first res-Ldentiai Tracr- 51-87 and RPD 99 -2, Developer shall acquire at its sole cost and expense the property needed to improve and make _i- ,prcvemen:s to the :al_iLt Ca'nyo. - I v_. frontage of the cc_ntiguous nrooerty to the Ncr- --: ?et! and the to South ' 'IS ers :itr - Wa. -.nut ca:-yori Corridor study. Final aesi on, plans ana spec_ficanons sh. _ be as app-roved :w _he City -: s SO E' _ctiscretici: subje o Caitrans cor_currence . =--nt-e cz--t--i -eg e oa die _ _ _es at- t h-e !iE r=T e s t r _ - t = Lti ee:=ge± s e f sate el- ± r tz=s,e ez= uc -�t�i eG ±i-- exeees "Qf--1.xt— -: e6�e -j f e_- ae='� -r. ti- --crye '-{3 -C � 1{ e—tc? Fe s- ? 6c : ha = ! be l a n-i ' e and er Eelnc- -rw±ge - -a- r, I'D L=evee t y e t-� 3 eel e -Q c--xee e 3vt v —= —re. 6.29. _ i- 11 —a rS —sele ee � a i id, ex? se -- - . effeE Fe y i: ree R- tDre-v-em< t __ iP t; :e -Spc _ �� � -. - -- �,,t�es�-a� =tie- t��ze•_ � ti ... -- o- ee` . A u Gi.t7yls- sel .velepe e e-kSt� fT e t sc'ei- above. 6.30. Developer at its sole cost and expense shall construct the public trail system i-dezi=f i e6 if -- =4}e Geeei.fie ?�f: across tl e Wal::ut Canyon frontar�e of the Property and across the adj.acen.t parcel to the Forth to connect to the tail i n J'"ra.cr x928 and across t':e_ adjacent oreperty tc_ the so-.:th to connect to a poin'l- as dote_ --m_i ned by the City at is sole discretion, including inspection and City administrative costs. Developer shall also at its sole cost and expense prepare a design, ate - plans,- and specifications for submittal to City. City shall approve design, a plans and specifications at its sole discretion. The required improvements shall also include construction West Pointe Dev Aor 2001 -26- of equestrian crossings at or near street intersections as determined necessary by City at its sole discretion. Developer shall at its sole cost and expense provide to City a cash deposit in the amount of one Hundred Fifty Thousand Dollars ($150,000.00) to fund the maintenance of the trail system. Payment shall be made prior to occupancy of the � —:-,,c hundredth (S200t) residential unit. 6.31. Die e 3 ha 11 a E — = _ set e E-e s-F- _ C_ 6.32. et- = ea , eay ---- .-:3- :_7 -f HI. �-_�- Ge 11 )e nG : F ±sae- h a9d Pe11aF 4 = -erTPr�. efe- z.l�� e =_ Develooer agrees ina� any --ees - - . .. and payments pursualt i:c this Agreeme.-t s::al l k e made W Z:hou,,: reservation, and Develcper expressly 4 ,res the right payment oL any suci: Lees .elder protest pursuant. to Cal i- orr.ia Jo%,ernmenc Code Section 66020__ arld sz:a7_utes amendatory or supp- emer.tary thereto. 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 West Pointe Dev Agr 2001 -27- 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 seq. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, and City overhead expenses of fifteen percent (15 %) on all out -of- 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 app_rova-i for -_ract 5167 and RP'- 99 -2 L-ne _ �E2 =ez =ve---Frrp --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, and construction of on -site and off -site improvements. -P' a ape - _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 West Pointe Dev Agr 2001 Mm 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 Park Fee 1ai-d -aiid —iffip� Teg required under subsection 6.9. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes exeept fir U-Se-3 vd=rre 3-- Lt i T- z i ar e— eea i= t- E, �'eEfi--i-reT*Tent-, fei= ear-!E l a n e Gam"' `a ; 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 Pl , _ . - Aeeas !2 and 1 o; lot 7.8. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Spee±fie Pla_= Prooerty 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 (5') maximum in the grades as shown on the Grading Plan exhibit of the Speer; Plan —Pro: erzy subject to approval of 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 Speeif Plan Procerty would not be significantly affected. 7.10. e t ?he- t-- ef— he ! Tr. le— Aveniat Area of Ge??r=ri&:' -iA`: fee rze enly the —fiist E� `ed s e v en-t y f = Ores i d-e? ._ m 1 -- ;-H 9 a BY ins s tT '� 1 en-al i s ems- v l=� n=i� e -Pre e-"c`t :--e } : rr�� ee rS . a l l- be t h e -s e! 1 3t i---a mi e6 -t n t i fi eeTL-eC r a rz: eh l�le —E�i s anee -e-f----t he per- m4-=fems- eaeh of the 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. west Pointe Dev Agr 2001 -29- % . 12 . e C l epe S!3 rr eE be _ _ Me s use— T— ',:Ze.r T wa 7- _ _. i t iaE SP "t —J 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developers with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of Developers hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay ", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the 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. Nest Pointe Dev Agr 2001 -30- 11. Default Provisions. 11.1. Default by Developer. - e The Developer shall be deemed to have breached this Agreement as a ef— a defa�t!=by- any eL-heDeveloper, -btrt any Developer sl l:.> be--ele-e;�ed -3=r 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 - materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, and the manner in which the West PoinLe Dev Agz 2001 -31- 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. West Pointe Dev Agr 2001 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 G�see=ien :mo=t= or Gsubsection 6.14 G:!9 (affordable housing) of this Agreement, City shall have the right to withhold the issuance of building permits to stir -- Developers throughout the Project air -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. -x r- eae e'y a De�,e Oper _ _ _ eenet a br eaen -a-e _ ... _ pe3`7---a-i?,d a = `v�cT`i���'` s a-1-e � y t e —the D e3J e-1 e p e-r- e! -r ± e ^ effl TCi t .. �—b Y eCI"e- -- T� -1Tl.T Je 2iability :-- se47E'1 --t � the n -Y 1 e--ee r- tdareE.rPae , . -32- 6 f N e-=_ e Lis o f Sci e l a t im e i-z tt -., e e -hat G i t- _ ,.eTiye rn l T e e e' -ft e r E`e —�v— s e e tc = Jam- =ti e=t�' � ?_C- 12. Mortgage Protection. At the same time that City gives notice to any 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 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, �} Developer may deliver written notice to City and City may deliver written notice to and, 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 West Pointe Dev Agr 2001 -33- F {f 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 tc 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 affeeeed. 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 affeeEed- 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 1e any Develepei= by mutual consent of City and the affected Developer. Ne amenafli _ L- t�e Tn;t D eve —e e t r en t e r s np ei:- =i a y e �-a l e —rh ate?- -c e :sue -p3vv ±ue cam— t-2 eye_eF er by the Prej eet� AppYe,, calz� ei— is . frT1E'1 _ eeTc i�t1 -2 -. _ - - -E ?i?C %! a i— _ In T=ime t�hal. t-i4 e age zdf-te nr. -- -z f ee�i v , vTG°d -the ;T% c i G rxi r. —rte c- i s tai: t, 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 West Pointe Dev ngr 2001 -34- agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or any provision thereof. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date 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 "C" 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. Wes[ Pointe Dev Ayr 2001 -35- 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developers, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Ordinance 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developer =. City and ?ate? 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 Wes[ Pointe Dev Aar 2001 -36- of this Agreement shall prevail. Should any provision of the ?s �e� - Irnolemer-atlon Plan be found to be in conflict with any provision of this Agreement, the provisions of the and izigaine -IT plene ^tati.or� Plan shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, West Pointe Homes, Irc., = n~,_ a- -and City of Moorpark have executed this Development Agreement on the date first above written. POINT i- OMES, !NC. -amen Rasmu,sen res_de:�t West Pointe Dev Agz 2001 -37- CITY OF MOORPARK Patrick Hunter Mayor EXHIBIT "B" 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 Wes~ Poinz�e Homes, Inc. , a Nevada Corporat�io:n F-ettnt —ai weed r� -a Ge.-I-eraz —Pam Fers , - ( 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 certain Development Agreement recorded in the office of the County Recorder of the County of Ventura as Instrument No. ( "the Development Agreement "); and WHEREAS, pursuant to the Development Agreement, 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 WesC ?xnLe Dev Agr 2001 _ 3 8 _ ? �Gt covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follow: 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. West Pcinte Uev Agr 2001 -39- IN WITNESS WHEREOF, ed Age,tira, G. El: -Vies Poim�e H,)mes, --ti--., and City of Moorpark have executed this Covenant on the date first above written. WEST ?OIN7L HOyIE-S, !NC. , a~ es Rasmussen: res i J. e. lc West Pointe Dev Agr 2001 -40- CITY OF MOORPARK Patrick Hunter Mayor EXHIBIT "C" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: ,hest ?o_nce Homes, Inc 9 >' +v'es 1vd. , Su J- z 2'04 estla;ce Village, CA 9 -6- A r - a7r.et Rasmussen, Presider-, IAI.c ' West Pointe Dev Agr 2001 -4 1 -