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HomeMy WebLinkAboutAGENDA REPORT 2002 0206 CC REG ITEM 12BCITY '71' cf ORDINANCE NO. 277 ITEM 1z__�_v_g AN _ORDINANCE OF THE CITY COUNCIL OF THE CITY OF F —J MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND WEST POINTE HOMES, INC. WHEREAS, at a duly noticed public hearing on October 3, 2001, continued public hearings on October 17, November 7, December 5, and December 19, 2001, and January 16 and January 23, 2 0 02 , the City Council considered the application filed by West Pointe Homes for the following projects on land located west of Walnut Canyon Road and approximately one -half mile north of Casey Road (APN'S 500 - 260 -025, -045, -075, -085, and -095; 500 - 270 -090, -140, -155, and -165): General Plan Amendment No. 99 -01 for a change in the Land Use Designation of the Land Use Element of the General Plan from Rural Low Density (RL) to Medium Low (ML) and Open Space -1 (OS -1) and Open Space -2 (OS -2). Zone Change No. 99 -1 for a change in the Zoning Designation on the property from RE -5 acre minimum lot size to Residential Planned Development (RPD) 1.80 dwelling units per acre and Open Space (OS) . Vesting Tentative Tract Map. No. 5187 and Residential Planned Development Permit No. 99 -02 on the application of West Pointe Homes for the subdivision of approximately 350 gross acres of land located west of Walnut Canyon Road and approximately one - half mile north of Casey Road into 250 single - family residential lots and thirteen (13) other lots, and construction of 250 single - family residential units; and WHEREAS, the Planning Commission of the City of Moorpark on March 12, 2001, did adopt Resolution Nos. PC 2001 -403, 2001 -404, and 2001 -405 recommending to the City Council approval of General Plan Amendment No. 99 -01, Zone Change 99 -01, Vesting Tentative Tract Map No. 5187, Residential Planned Development 99 -02 and certification of the project Environmental Impact Report; and WHEREAS, the Planning Commission of the City of Moorpark on November 26, 2001, did adopt Resolution No. PC 2001 -419 recommending to the City Council approval of Development Agreement No. 2001 -01; and WHEREAS, the City Council on January 23, 2002, certified the Final Environmental Impact Report for the project as having been completed in accordance with the California Environmental Quality 0003102 Ordinance No. 277 Development Agreement No. 2001 -01 Page 2 Act (CEQA), the CEQA Guidelines, and the City's CEQA procedures; and WHEREAS, the City Council on January 23, 2002, did adopt Resolution No. 2002 -1935 adopting a Mitigation Monitoring and Reporting Program; and WHEREAS, at a duly noticed hearing on December 19, 2001, and continued public hearings on January 16 and 23, 2002, the City Council considered Development Agreement No. 2001 -01; and WHEREAS, the City Council, after review and consideration of the information contained in the City Council staff reports and testimony, has made a decision on this matter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Moorpark does hereby find as follows: a. The Development Agreement is consistent with the General Plan as amended by General Plan Amendment No. 99 -01. b. The Development Agreement and assurances that said agreement places upon the project are consistent with the intent and provisions of the Final Environmental Impact Report certified on January 23, 2002. C. The Development Agreement is necessary to insure the public health, safety and welfare SECTION 2. The City Council hereby adopts Development Agreement No. 2001 -01 (attached hereto as Exhibit A) between the City of Moorpark, a municipal corporation and West Pointe Homes, Inc., a California Corporation, and the City Clerk is hereby directed to cause one copy of the signed adopted agreement to be recorded with the records of the County of Ventura within ten (10) days of adoption of said agreement. SECTION 3. This Ordinance shall become effective thirty (30) days after its passage and adoption. ®0033 Ordinance No. 277 Development Agreement No. 2001 -01 Page 3 SECTION 4. That if any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute order of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this 6th day of February, 2002. Patrick Hunter, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk EXHIBIT A: Development Agreement No. 2001 -01 N 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 WEST POINTE HOMES, INC. 00035 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and WEST POINTE HOMES, INC., a California Corporation, the owner of real property within the City of Moorpark generally referred to as Vesting Tentative Tract Map 5187 (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 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 sec-. 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 Final Environmental Impact Report ( "the EIR") for the Project Approvals as defined in subsection 1.3 of this 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 and Reporting Program "), approved General Plan Amendment No. 99 -01 ("GPA 99 -111), for approximately 350 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. 99 -01 ("ZC 99 -111). 1.3. GPA 99 -1, ZC 99 -1, Tract 5187 and RPD 99 -2 (collectively "the Project Approvals "; individually "a Project Approval ") provide for the development of the West Pointe Dev Agr 2001 44 -2- 0003:16 Property and the construction of certain off -site improvements in connection therewith ( "the Project "). 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. Developer anticipates developing the Property over a minimum of three (3) years. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and conditions 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 GPA 99 -1. 1.7. On November 26, 2001, 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 December 5, 2001, the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing on January 23, 2002, approved the Agreement by Ordinance No. 277 ( "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 ". 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 West Pointe Dev Agr 2001 #4 —3— 0003:17 4. 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 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 of 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 operative 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, delivered to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses 4.2. permitted The permitted and uses of the Property shall those that are allowed by the Project this Agreement. conditionally be limited to Approvals and Development Standards. All design and development standards, including but not limited to density or West Pointe Dev Agr 2001 #4 —4 _ 00031S intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes "). 4.4. Reservations and Dedications. All reservations and dedications of land for public applicable to the Property are set Approvals and this Agreement. S. Vesting of Development Rights. purposes that are forth in the Project 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. West Pointe Dev Agr 2001 #4 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 provided the Property is developed in accordance with the Project Approvals and this Agreement. Nothing in this section shall be construed -5- 00039 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 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 Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals "; individually "a Subsequent Approval ") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: (a) change any permitted or conditionally permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improvements from what is allowed by the Project Approvals. West Pointe Dev Agr 2001 #4 —6— 0003,01-1410 (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 (g) modify the land use from what is permitted by the City's 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 ten (10) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the provisions of Government Code Section 66452.6(a) or the fact that the final map may be filed in phases. 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. West Pointe Dev Agr 2001 #4 The term of any Subsequent Approval, except a tentative map or subdivision improvement or other agreements -7- U () () 3SIZO relating 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 Developer 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 modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such 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 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. Consistent with Subsection 5.1 of this Agreement, in no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. West Pointe Dev Agr 2001 44 0003022 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 Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant and (iv) the Mitigation Monitoring and Reporting Program (MMRP) and any subsequent or supplemental program. 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 the issuance of a building permit for each residential or institutional use within the boundaries of the Property, 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 Seven Thousand Eight Hundred Fifty Dollars ($7,850.00) per residential unit and Thirty -Five Thousand, Three Hundred Twenty -Five Dollars ($35,325.00) per gross acre of institutional land on which the use is located. The fee shall be adjusted annually commencing one (1) year after the first residential building permit is issued within Tract 5187 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, West Pointe Dev Agr 2001 #4 ®90363 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 Tract 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. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, 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 operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Four Thousand Two Hundred Forty Dollars ($4,240.00) per residential unit, and Nineteen Thousand Eighty Dollars ($19,080.00) per acre of institutional land on which the institutional use is located. Commencing on January 1, 2003, and annually thereafter, both categories of the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is available on December 31 of the preceding year ( "annual indexing "). In the event there is a decrease in the referenced Index for any annual indexing, the Citywide Traffic Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.5. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the 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 Thirty Dollars ($2,030.00) per residential unit, and Six Thousand Four Hundred Twenty -Eight Dollars ($6,428.00) per gross acre of institutional land on which the institutional use is located. This West Pointe Dev Agr 2001 #4 -10- 000324 shall satisfy Developer's Casey Road /Gabbert Road Area of Contribution (AOC) obligation for the Property. The City may use these monies for any purpose related to the Casey Road /Gabbert Road AOC or any other lawful purpose at its sole and unfettered discretion. City agrees to accept these payments as full satisfaction of Developer's obligation to pay Casey Road /Gabbert Road AOC fees. Commencing on March 1, 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 December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the In Lieu Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, and EIR. 6.7. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). On the operative date of this Agreement, the amount of the Park Fee shall be Nine Thousand Dollars ($9,000.00) for each residential dwelling unit and Fifty Cents ($.50) per square foot of each building used for institutional purposes within the Property. The fee shall be adjusted annually commencing one (1) year after the first residential building permit is issued within Tract 5187 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 West Pointe Dev Agr 2001 #4 -11- 000 ,325 within Tract 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 Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Developer agrees that the above - described payments shall be deemed to satisfy the parkland dedication requirement set forth at California Government Code Section 66477 et se . for the Property. 6.8. Provided that prior to recordation of the first final map for Tract 5187 or March 31, 2003, whichever is later, Ventura County Waterworks District No. 1 or any successor entity confirms that it has sufficient recycled water to serve the public and community owned landscaped areas within Tract 5187, then 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. 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, and any other public and commonly owned landscaping and recreation areas. The amount of recycled water needed and areas to be irrigated by recycled water shall be determined by City at its sole discretion. 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 all 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. 6.9. 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 West Pointe Dev Agr 2001 04 -12- 0 0036 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 Council 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. 6.10 (a) Developer shall dedicate Lot 263, as shown on Vesting Tentative Tract Map No. 5187, in fee simple interest to City for the purposes of permanent open space preservation. Such dedication shall be in the form of an irrevocable offer of dedication on the first final map for Tract No. 5187, or at City's sole option, fee title transfer by grant deed and legal description may be requested by City to occur prior to approval of a Grading Permit for Tract No. 5187. City may at its sole discretion approve another agency, such as the Santa Monica Mountains Conservancy, to hold a grant deed in Trust for the City for Lot 263. West Pointe Dev Agr 2001 #4 (b) Concurrent with City or other City- approved agency acceptance of fee title for Lot 263, Developer (and the Homeowners' Association when it is legally a successor to Developer) shall submit an annual payment to City for the purposes of permanent management, maintenance, and mitigation monitoring for open space Lot 263. On the operative date of this Agreement, the amount of the Open Space Maintenance Fee shall be Ten Thousand Dollars ($10,000.00) per year. The establishment of the HOA shall include provisions for this perpetual obligation. The fee amount shall be adjusted annually on the anniversary of its acceptance by City, as provided above, by any increase in the Consumer Price Index (CPI). 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/ -13- ®0'0+3:17 West Pointe Dev Agr 2001 #4 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 payment is due (e.g., if the fee payment due date 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 Open Space Maintenance Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. (c) Concurrently with recordation of the first final map for Tract No. 5187, Developer agrees to grant, in a form acceptable to City, a conservation easement to retain Lots 254, 255, 257, 258, 259, 260, 261, 262, 264, and 265, as shown on the Vesting Tentative Map, in a predominantly open space condition consistent with Civil Code Section 815 et se q., except for intended uses as shown on the Vesting Tentative Map and any final map for Tract 5187 and as provided for in this Agreement. Developer shall dedicate Lot 251, as shown on Vesting Tentative Tract Map No. 5187, in fee simple interest to City for the purposes of permanent open space preservation and for use as the trail staging area. Such dedication shall be in the form of an irrevocable offer of dedication on the first final map for Tract No. 5187, or at City's sole option, fee title transfer by grant deed and legal description may be requested by City to occur prior to approval of a Grading Permit for Tract No. 5187. Developer shall make improvements at its sole cost and expense to the trail staging area on Lot 251 of Tract No. 5187. The improvements shall be as determined by the City at its sole discretion and shall include but not be limited to the following: preparation of a site plan, grading, installation of a parking lot with paving material as determined by the City (either asphalt, concrete, or decomposed granite, or similar material), water and electricity services, security lighting, and fencing and gates. Improvements shall be completed to the satisfaction of the City prior -14- to occupancy of the 165th residential unit in Tract No. 5187. The Implementation Plan shall include a payment amount by the Developer to provide for the perpetual maintenance of the trail staging area. Said payment shall be made prior to occupancy of the 165th residential unit for Tract 5187. The Implementation Plan shall also include provisions for the Developer to construct a temporary trail staging area within the "A" Street right -of -way south and west of the future intersection of "A" Street and "E" Street of Tract 5187. (d) No extraction of subsurface mineral resources, excavation, drilling, pumping, mining, or similar activity shall be allowed in any portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easements. 6.11. Developer shall provide five (5) four (4) bedroom and two bath single family detached units with a minimum of 1,200 square feet and a maximum of 1,500 square feet to be sold to buyers who meet the criteria for low income (80 percent or less of median income); five (5) four (4) bedroom and two bath single family detached units with a minimum of 1,200 square feet and a maximum of 1,500 square feet to be sold to buyers who meet the criteria for very low income (50 percent or less of median income) and ten (10) four (4) bedroom and two (2) bath single family detached units with a minimum of 1,200 square feet and maximum of 1,500 square feet to be sold to buyers who meet the criteria for moderate income (110 percent or less of median income). Prior to approval of the first final map for Tentative Tract Map No. 5187, Developer shall acquire at it's sole cost and expense, an approximate two -acre parcel (Affordable Housing Parcel) within the Moorpark Redevelopment Agency project area on which to construct the 20 referenced units. All units shall include a standard size two -car garage with roll -up garage door and a minimum driveway length of eighteen (18) feet measured from the back of sidewalk, meet minimum setback requirements of the City RPD zone, include concrete roof tiles, and other amenities typically found in moderate priced housing in the City (e.g., air conditioning /central heating, washer /dryer hookups, garbage disposal, built -in dishwasher). West Pointe Dev Agr 2001 #4 -15- 00030"409 Developer must have received city approval of a land use designation, zoning, tentative tract map, residential planned development permit and any other required permits and approvals to allow construction of the referenced twenty (20) dwelling units on the Affordable Housing Parcel prior to approval of the first residential occupancy for Tract Map No. 5187. Developer shall be responsible for the following at its sole cost and expense: (a) Processing of City required entitlements including but not limited to Tentative Tract and Final Map and Residential Planned Development Permit (RPD). (b) Processing of General Plan Amendment, Zone Change, and environmental document (up to a Mitigated Negative Declaration but not an Environmental Impact Report). (c) Payment of all required City fees for processing of applications for (a) and (b), above, consistent with City's Fee Schedule in effect at the time an application is filed with the City. (d) Pay all City capital improvement and mitigation fees including but not limited to those fees required in subsections 6.3, 6.4, 6.5, 6.7, 6.12, 6.16 and 6.17 of this Agreement. (e) Grade the site per approved map, install all utilities, and construct all public and private improvements consistent with City standards typical for such subdivision. The first ten units (5 moderate, 2 low, 3 very low) shall be constructed and ready for occupancy prior to the 100th occupancy in Tract 5187, and the next 10 units (5 moderate, 3 low, 2 very low) shall be constructed and ready for occupancy prior to the occupancy of the 150th unit in Tract 5187. If for any reason less than twenty (20) dwelling units are approved for the Affordable Housing Parcel by the City, Developer shall pay Seventy Thousand Dollars ($70,000.00) to City for each unit less than the required twenty (20) units. The total amount shall be due and payable prior to occupancy of the 50th unit in West Pointe Dev Agr 2001 #4 -16 - 00033 West Pointe Dev Agr 2001 #4 Tract 5187. This amount shall be adjusted on March 1, 2005, by any increase in the Consumer Price Index (CPI) and annually thereafter on each March 1. 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 December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the amount due shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. In the event less than twenty (20) units are approved on the Affordable Housing Parcel, the first such unit deducted from the required number of units shall be a moderate income unit, the second such unit a low income unit, the third unit a very low income unit and so forth in the same order. In the event Developer does not receive City approval for at least 16 dwelling units on an Affordable Housing Parcel prior to March 1, 2005, City at it's sole discretion can require payment in the amount of Two Million Six Hundred Twenty Five Thousand Dollars $2,625,000.00 payable prior to approval of the first final map for Tract Map No. 5187. Effective March 1, 2006, this amount shall increase by one -half of one percent (.5 %) each month until paid. At City's sole discretion, two of the lots intended for either low or very low income buyers on the Affordable Housing Parcel may be retained by the City for purposes of constructing the dwelling units in conjunction with a non - profit group. The initial purchase price for the low - income buyers shall not exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of California Health and Safety Code. For a family of 4, the monthly "affordable housing cost" would be 30% times 70% of $71,800, the current median income for a family of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety -17- 000331 Code.) The selling price for a household of 4 or fewer, would be $137,500 under current market conditions, based upon the following assumptions: Low Income Buyer Household of Four Item Detail Amount Purchase Price $137,500 Down Payment 5% of purchase price $6,875 Loan Amount 95% of purchase price $130,625 Interest Rate 7.5% Property Tax 1.25% $143 /mo. HOA $50 /mo. Fire Insurance $40 /mo. Maintenance $30 /mo. Utilities $100 /mo. The initial purchase price for a low- income household of five or more would be based on the affordable housing cost for the actual household size. Under current market conditions, that price would be $150,000 for a household of five, $164,000 for a household of six, and $177,500 for a household of seven. The initial purchase price for the very low- income buyers shall not exceed $90,000, based on the following assumptions: Very Low Income Buyer Household of Four Item Detail Amount Purchase Price $90,000 Down Payment 5% of purchase price $4,500 Loan Amount 95% of purchase price $85,500 Interest Rate 7.5% Property Tax 1.25% $94 /mo. HOA $50 /mo. Fire Insurance $40 /mo. Maintenance $30 /mo. Utilities $100 /mo. West Pointe Dev Agr 2001 #4 1 ": 000332 West Pointe Dev Agr 2001 #4 That initial purchase price for a very low - income household of five or more would be based on the affordable housing cost for the actual household size. Under current market conditions, that price would be $99,500 for a household of five, $109,000 for a household of six, and $118,500 for a household of seven. The assumptions associated with the above purchase price figures include a minimum of 5% down payment, based on buyer's purchase price, mortgage interest rate of 7.5 %, no mortgage insurance, property tax rate of 1.25 %, homeowners' association dues of $50 per month, fire insurance of $40 per month, maintenance costs of $40 per month, and utilities of $100 per month. The initial purchase price for a moderate income household of four shall not exceed Two Hundred Forty Thousand Dollars ($240,000.00). The initial purchase price for all three categories of buyers shall be adjusted based on then current interest rates, then applicable income calculations and other pertinent factors as contained in the Affordable Housing Implementation and Resale Restriction Plan. If "affordable housing cost ", as defined in Section 50052.5 of California Health and Safety Code, should change in the future, the above guidelines will be modified. The Affordable Housing Implementation and Resale Restriction Plan shall address this potential change. The difference between the initial purchase price and market value shall be retained by the City as a second deed of trust and will be further defined in the Affordable Housing Implementation and Resale Restriction Plan. City shall control the resale of any of the units. Developer shall pay closing costs for each unit, not to exceed $5,000. Beginning March 1, 2005, and on March 1st for each of fifteen subsequent years, the maximum $5,000 to be paid for closing costs shall be increased annually by any percentage increase in the Consumer Price Index (CPI) for All Urban Consumers for Los Angeles /Orange /Riverside metropolitan area during -19- 000333 the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the amount due shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. In addition, in lieu of constructing ten (10) low income and five (5) very low income affordable housing units, for each of the two hundred fifty dwelling units in the project, developer shall pay to City an In Lieu Fee which shall be used by the City at its sole discretion for the purpose of providing housing affordable to very low, low or moderate income households. The In Lieu Fee in the amount of Three Thousand Four Hundred Dollars ($3,400.00) shall be paid prior to issuance of the building permit for each dwelling unit in the Project. Commencing on March 1, 2005 and annually thereafter, the In Lieu Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all In Lieu Fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. 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. The initial purchase price, market value, buyer eligibility, resale restrictions, equity share and second trust deed provisions, respective role of City and Developer, and any other items determined necessary by the City shall be set forth in the Affordable Housing Implementation and Resale Restriction Plan, which shall be approved by the City Council in its sole and unfettered discretion prior to recordation of the first final Tract Map for this Project. The Developer and City shall, prior to the occupancy of the first residential unit for the Project, execute an Affordable Housing Agreement that incorporates the Plan in total and is consistent with this Agreement. Developer shall pay the City's direct West Pointe Dev Agr 2001 #4 —2 0 _ 000334 costs for preparation and review of the Affordable Housing Implementation and Resale Restriction Plan and the Affordable Housing Agreement up to a maximum of Seven Thousand, Five Hundred Dollars ($7,500.00). 6.12. Developer agrees that the Mitigation Measures included in the City Council certified Final Environmental Impact Report (EIR) and Mitigation Monitoring and Reporting Program (MMRP), or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. Developer 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 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 #4 At the time the Fee is due, City may at its sole discretion require Developer to purchase equipment, vehicles, or other items, contract and pay for services, or make improvements for which Developer shall receive equivalent credit against Air Quality Fee payments or refund of previous payments. The Air Quality Fee shall be One Thousand Four Hundred Forty -Four Dollars ($1,444.00) per residential unit to be paid prior to the issuance of each building permit for the first residential unit in Tract 5187. Commencing on March 1, 2005, and annually thereafter the Air Quality Fee shall be adjusted 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 of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. For institutional uses, the Air Quality Fee shall be calculated by the Community Development Department -21- 00%0335 prior to the first occupancy approval for each institutional use. 6.13. Prior to approval of the first grading permit for the Property, or approval of the first final map of Tract 5187, whichever occurs first, Developer shall submit and gain approval from City Council of an Implementation Plan. The Implementation Plan shall address the requirements for phasing and construction responsibilities of Developer and any successors including sureties for performance for all grading, construction of storm drains and utilities, private and public streets, and other private and public improvements on or offsite required by Tract 5187, RPD 99 -2 and this Agreement. The Implementation Plan shall also address the entities responsible and method and timing of guarantee for each component of Developer's obligations pursuant to Tract 5187, RPD 99 -2, and this Agreement and Developer's obligation for a Trail Staging area as referenced in subsection 6.9. of this Agreement. The approval of the Implementation Plan and any Amendments thereto shall be at the City Council's sole discretion. Prior to sale or any transfer of ownership of any portion of Tract 5187 (except individual lots after construction of houses), Developer shall seek City approval of an amendment to the Implementation Plan to address the responsibilities of each entity. 6.14. 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 on the Property. 6.15. Developer agrees to cast affirmative ballots for the formation of one or more assessment districts and levying of assessments, for the maintenance of parkway and median landscaping, street lighting, including but not limited to all water and electricity costs, 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 West Pointe Dev Agr 2001 #4 —22- 0003136 requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. Prior to recordation of the first final map for the Property, if required by City at its sole discretion, Developer shall also form one or more property owner associations to assume ownership and maintenance of open space land, trails, storm water detention basins and related drainage facilities, landscaping, access road to water tank site, and other amenities, and to comply with the National Pollutant Discharge Elimination System (NPDES) requirements of the Project. The obligation of said property owner associations shall be more specifically defined in the conditions of approval of Tract 5187 and RPD 99 -2. 6.16. 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. 6.17. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee for each residential lot and institutional use prior to the issuance of a building permit for each lot or use. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit for each residential lot and institutional use. 6.18 The developer shall construct the required regional flood control basin (Lot 259 on Tract 5187) as depicted in the Walnut /Gabbert Deficiency Study in lieu of their pro rata contribution for Drainage, Sediment Transport and Flood Control Planning Mitigation Measure #4 in the Mitigation Monitoring and Reporting Program (MMRP). West Pointe Dev Agr 2001 #4 -23- 000337 6.19. Prior to approval of the first final map for the Property, the Developer shall pay to the City Seventy Thousand Dollars ($70,000.00) to satisfy the Final EIR Biological and Botanical Resources Mitigation Measures 5., 18., and 19. This payment may be expended by City in its sole discretion for open space acquisition and maintenance and habitat restoration and preservation. 6.20. Developer shall construct "A" Street from "E" Street to the southern boundary of Tract 5187 prior to occupancy of the one hundred sixty -fifth (165th) residential unit of Tract 5187. The design, plans and specifications including right of way requirements for the above - referenced improvements shall be approved by City at its sole discretion and incorporated as part of the Implementation Plan. Developer shall also pay City for its plan check, inspection and administrative costs related to the design and construction of said improvements. Developer shall provide a surety in an amount and form determined by City at its sole discretion obligating Developer for the long -term maintenance of "A" Street until two years after the occupancy of the last residential unit in Tract 5187. The obligation shall provide for a 50 -year life for "A" Street. 6.21. Prior to issuance of the first residential building permit for the Property, the Developer shall pay to the City Three Hundred Thousand Dollars ($300,000.00) to satisfy the Mitigation Monitoring Program Traffic and Transportation Mitigation Measures 1. and 2. and shall pay to the City Twenty Thousand Dollars ($20,000) to satisfy Public Services and Utilities Mitigation Measure 2. Effective March 1, 2005, the $300,000.00 payment referenced above shall increase by one -half of one percent (.5 %) each month until paid. These payments may be expended by City in its sole discretion. 6.22. Prior to occupancy of the first residential unit in Tract 5187 and RPD 99 -2, Developer shall acquire at its sole cost and expense the property needed to improve and make improvements to the Walnut Canyon Road and be consistent with the conditions of approval for Tract 5187. West Pointe Dev Agr 2001 #4 -24- 000338 6.23. Developer at its sole cost and expense shall construct the public trail system across the Walnut Canyon frontage of the Property and across the adjacent parcel to the North to connect to the trail at its terminus as constructed by the developer of Tract 4928 and across the adjacent property to the south to connect to a point as determined by the City at its sole discretion, including inspection and City administrative costs. Developer shall also at its sole cost and expense prepare a design, plans and specifications for submittal to City. City shall approve design, plans and specifications at its sole discretion. The required improvements shall also include construction of equestrian crossings at or near street intersections as determined necessary by City at its sole discretion. Maintenance of the trail system shall be the responsibility of the Tract 5187 Homeowners Association. 6.24. Developer agrees that any fees and payments pursuant to this Agreement shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. 6.25. Developer agrees to comply with Section 15.40.150 of the Moorpark Municipal Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall include evaluation of its compliance with the approved Mitigation Monitoring and Reporting Program (MMRP) . 6.26 Developer agrees to install a photovoltaic system for each residential dwelling unit in Tract 5187 consistent with City policy and standards, so long as City adopts a policy and standards prior to January 31, 2004, or approval of the first final map for Tract 5187, whichever is later. 7. City Agreements. 7.1. City shall commit reasonable 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. West Pointe Dev Agr 2001 #4 -25- 000339 Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, the expedited and parallel processing. 7.2. 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 66462.5 et se q. 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. 7.3. 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 approval for Tract 5187 and RPD 99 -2 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. 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. 7.4. City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements for the same property so long as said entitlements are deemed complete. 7.5. City agrees that the Park Fee required under subsection 6.7. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes. 7.6. City agrees, at no cost to City, to cooperate with Developer to allow Developer to receive the maximum West Pointe Dev Agr 2001 #4 -26- 000340 amount of tax benefits for its voluntary dedication of lot 263 of Tract 5187 for public open space. 7.7. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Property required herein for the duration such units are required to be maintained as affordable consistent with the provisions of subsection 6.11. 7.8. City agrees to allow for a variation of five feet (5') maximum in the grades as shown on the Grading Plan exhibit of Tract 5187 subject to approval of the Director of Community Development upon a determination by the Director in his /her sole discretion subject to review by the City Council that the overall design and visual quality of the Property would not be significantly affected. 7.9. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map development permit or development agreement with one or more other developers. 7.10. City agrees at Developer's request and sole cost and expense to process a lot line adjustment to modify the common lot line of a portion of Tract 5187 and APN 500 - 0230 -195 (Peter's Parcel) to increase Peter's Parcel to ten (10) gross acres. The requested lot line adjustment must conform to the State Subdivision Map Act and City Subdivision Ordinance in effect at the time an application for a lot line adjustment is filed with City, shall not exceed eight thousand eight hundred (8,800) square feet, and must be filed by Developer and approved by City prior to approval of the first final map for Tract 5187. 7.11 City agrees that for Developer's construction of affordable housing units consistent with subsection 6.11 of this Agreement that the Development Fee shall be Three Thousand Dollars ($3,000.00) per unit, Park Fee shall be Three Thousand Six Hundred Dollars ($3,600.00) per unit, and the Air Quality Fee shall be Five Hundred Dollars ($500.00) per unit. These three fees shall be increased beginning three years after West Pointe Dev Agr 2001 #4 -27- 00034:. approval of the Tentative Tract Map required in subsection 6.11, or March 1, 2007, whichever occurs first, and then annually thereafter until paid, with said increase to be consistent with the provisions of this Agreement as it applies to each of these fees. 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 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 Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, City shall also review Developer's compliance with the Mitigation Monitoring and Reporting Program (MMRP). 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. West Pointe Dev Agr 2001 #4 —2 8 _ 000342 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 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 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 of the alleged breach, and the manner in which the breach may be satisfactorily cured. The notice shall West Pointe Dev Agr 2001 #4 —2 9 — 000343 be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. The remedies for breach of the Agreement by Developer shall be injunctive relief and /or specific performance. In addition, if the breach is of subsections 6.10, 6.11, 6.12, 6.13, 6.15, 6.16, 6.17, 6.19, 6.20, or subsection 6.21 of this Agreement, City shall have the right to withhold the issuance of building permits to Developer throughout the Project 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. 12. Mortgage Protection. At the same time that City gives notice to 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. West Pointe Dev Agr 2001 44 -30- 000,344 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 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 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 Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. West Pointe Dev Agr 2001 04 -31- 000345 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, by mutual consent of City and the affected Developer. 15.1 Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement. 16. Indemnification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, 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 any Project Approval or Subsequent Approval or modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. 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 Agreement shall not automatically affect any Project or Subsequent Approval that has been granted or any West Pointe Dev Agr 2001 #4 -32- of this Approval right or 000346 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 Ord) 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 "B" 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 and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be West Pointe Dev Agr 2001 #4 -33- 000347 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 Ordinance 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developer. 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 convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. Should any provision of the Implementation Plan be found to be in conflict with any provision of this Agreement, the provisions of the Implementation 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 West Pointe Dev Agr 2001 #4 -34- 5 1 'I I U1 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, Inc., and City of Moorpark have executed this Development Agreement on the date first above written. WEST POINTE HOMES, INC. James Rasmussen President West Pointe Dev Agr 2001 #4 -35- CITY OF MOORPARK Patrick Hunter Mayor 000345 EXHIBIT "B" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: West Pointe Homes, Inc. 960 Westlake Blvd., Suite 204 Westlake Village, CA 91361 Attn: James Rasmussen, President 000350