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HomeMy WebLinkAboutAGENDA REPORT 2002 1016 CC REG ITEM 10FITEM 10- Ps CTTV OF MOORPARK, CALIFORNTA City Council Meeting of ACTTON: CA C . d -Ft Re me�al� MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Barry K. Hogan, Community Development Director Prepared by Laura Stringer, Senior Managemen alyst DATE: October 1, 2002 (CC Meeting of 10/16/02) �y SUBJECT: Consider Report of Annual Development Agreement Review, Established in Connection with a 35 Acre, Detached Single Family Residential Unit Project Located on the South Side of Los Angeles Avenue, West of Leta Yancy Road (Formerly Liberty Bell Road) (Tract 5053, Pacific Communities). BACKGROUND Government Code Section 65864 and City of Moorpark Municipal Code Section 15.40 provide for Development Agreements between the City and property owners in connection with proposed plans of development for specific properties. Development Agreements are designed to strengthen the planning process, to provide developers some certainty in the development process and to assure development in accordance with the terms and conditions of the agreement. On June 16, 1999, the Moorpark City Council adopted Ordinance No. 257 (effective July 16, 1999), approving a Development Agreement between the City of Moorpark and MP Group, LLC (Pacific Communities). The agreement was approved in connection with a thirty five (35) acre, 247 unit, detached single- family residential project located on the south side of Los Angeles Avenue west of Leta Yancy Road (formerly Liberty Bell Road). The agreement remains in full force and effect for twenty (20) years from the operative date of the agreement (until January 15, 2019), or until the close of escrow on the initial sale of the last Affordable Housing Unit, whichever occurs last. Provisions of the agreement require an annual review and report to the City Council on the status of completion of all aspects of the agreement. On August 1, 2001, the City Council accepted the S: \Community Development \D A \1998 -02 \Staff Report \cc 021016 .doc C' `�f 1 Honorable City Council October 16, 2002 Page 2 Community Development Director's report and recommendation that, on the basis of substantial evidence, Pacific Communities had complied in good faith with the terms and conditions of the agreement, and deemed the annual review process complete for 2001. The developer has submitted the necessary application form, related materials, and fee /deposit for the 2002 annual review. The Community Development Director has reviewed the submitted information, including the project status and provides the following report. DISCUSSION Protect Status The following developer items have been completed or are currently in progress: • Construction of a wall on the west property line has been completed. • Improvement plans for grading, streets and drainage and the final map for Phase I remain in the plan check process. The latest map check was returned to the developer's engineer in June 2002, and the improvement plan check package was returned to the developer in August 2002. The plans have not yet been resubmitted. The City Engineer indicates that some detail work on the plans remains to be completed. The developer also needs to address flood plain elevation issues and National Pollution Discharge Elimination System (NPDES) requirements. • All residential building plans have been submitted and reviewed and are awaiting final approval contingent upon other project approvals. The latest submittal was during October 2001. • An agreement has been reached with Ventura County Flood Control for construction of District of Moorpark Drain No. 2 (sixty -inch (60 ") reinforced concrete pipe from Los Angeles Avenue to Arroyo Simi). • CalTrans encroachment permits and extensions have been issued for construction of the traffic signal at Los Angeles Avenue and Shasta Avenue, and the street widening improvements along Los Angeles Avenue. Although the City has pursued the concept Honorable City Council October 16, 2002 Page 3 of early construction of the traffic signal, current site, utility and traffic handling constraints render that option unfeasible. Within the next twelve (12) months the developer anticipates completion of the following: • Finalizing improvement plan check and final map check requirements. • Completion of grading. • Issuance of Model Home building permits. • Issuance of permits for infra - structure improvements. • Recordation of phases one and two of the Final Map, involving approximately eighty (80) lots. • Initiation of production housing construction. • Completion of the Affordable Housing Implementation and Resale Restriction Plan and Affordable Housing Agreement. Developer Compliance with Terms of Agreement Pacific Communities' development responsibilities are included in Section 6 of the Development Agreement, and include twelve (12) specific requirements, as summarized below. Compliance with the terms and conditions of the Development Agreement will occur at various stages of the development process. Action by the developer and other clarifying information has been noted. Where no comment appears concerning the Development Agreement Sections identified below, no specific activity has occurred. # Requirement Status 1. Compliance with Development In process Agreement, Project Approvals and Subsequent approvals 2. Intentionally left blank in the N/A Development Agreement Honorable City Council October 16, 2002 Page 4 # Requirement Status 3. Intentionally left blank in the N/A Development Agreement 4. Payment of fee in lieu of park No request for fee land dedication required to be calculation has been paid prior to recordation of each received. Payment phase of the Final Map. The park required prior to Final fee is to be calculated in Map recordation. accordance with the City's Subdivision Ordinance requirements, but shall not be less than two thousand five hundred dollars ($2,500) for each residential lot 5. Payment of "Development Fees" of These fees will be two thousand five hundred dollars adjusted annually ($2,500) per residential unit (until paid) using the Consumer Price Index (CPI) in accordance with the Agreement. Fees must be paid prior to issuance of building permits 6. Payment of "Citywide Traffic These fees will be Fees" of three thousand dollars adjusted annually ($3,000) per residential unit (until paid) using the State Highway Bid Price Index in accordance with the Agreement. Fees must be paid prior to issuance of building permits 7. Payment of all outstanding City The project processing processing and environmental account balance is processing costs current, and deposit of $1,760 for the Development Agreement - Annual Review, was paid on June 5, 2002. Honorable City Council October 16, 2002 Page 5 # Requirement Status 8. Waive any right of any density bonus that would increase the number of dwelling units approved for this project 9. Agreement to cast affirmative vote for the formation of an assessment district with the power to levy assessments for the maintenance of parkway landscaping, street lighting (upon Council request - parks conferring special benefits), and to obligate the property owners association to provide for maintenance of parkway landscaping and street lighting in the event the assessment district is dissolved 10. Provide Affordable Housing Units A model agreement is as follows: currently in Median Income development. Eleven (11) three (3) bedroom Additionally, Section units 1.11 of the Development Eleven (11) four (4) bedroom Agreement includes units provisions for Very Low Income affordable housing on In lieu fee of $60,000 for the approximately five each of fifteen (15) units, (5) acre parcel (Tract for a total $900,000 to be No. 5204) located paid at $3,643.73 per unit immediately to the prior to issuance of building east, and approved as a permit. thirty -seven (37) lot extension of the subject development. 11. Agreement to pay all City capital Capital improvement and improvement, development and development fees will processing fees be collected prior to issuance of permits /Final Map � i • � _cN k.+i Honorable City Council October 16, 2002 Page 6 # Requirement Status 12. Deposit one hundred thousand The developer deposited dollars ($100,000) with the City one hundred thousand for the purpose of managing and dollars ($100,000) on 2. coordinating the widening of Los August 24, 1999. Angeles Avenue (SR 118) to three (3) travel lanes in each direction between Moorpark Avenue and Spring Road City Compliance with Terms of Agreement The City's responsibilities are included in Section 7 of the agreement and include six (6) specific provisions, as summarized below. Where no comment appears concerning the Development Agreement Sections identified below, no specific activity has occurred. # Requirement Status 1. Expedite (to the extent possible) the processing of plan checking, and related processing 2. Units reserved for and sold to low income buyers shall not be subject to air quality (Traffic Management System Management) fees 3. Condition Vesting Tentative Tract Map to expire ten (10) years after its approval or conditional approval, or upon expiration of or earlier termination of this agreement 4. Authorize the City Manager to An Early Grading sign an Early Grading Agreement Agreement has been to allow rough grading prior to prepared, but has not City Council approval of a final yet been approved subdivision map Honorable City Council October 16, 2002 Page 7 # Requirement Status 5. Allow construction of one or more model homes prior to City Council approval of a final subdivision map 6. Allow recordation of final maps for the VTTM in phases Evaluation of Good Faith Compliance Based on a review of the Development Agreement Annual Review Application and the status of the project, the Community Development Director has determined, on the basis of substantial evidence that Pacific Communities has, to date, complied in good faith with the terms and conditions of the agreement. STAFF RECOMMENDATION 1. Accept the Community Development Director's Report and recommendation that, on the basis of substantial evidence, Pacific Communities has complied in good faith with the terms and conditions of the agreement. 2. Deem the annual review process complete. Attachments: 1. Location Map 2. Site Plan 3. Narrative from Pacific Communities 4. Development Agreement V yL �.y ► I>cB LOCATION MAP -T NORTH CC ATTACHMENT 1 ME,, In ��L ARROYO PACIFIC CITY OF MOORPARK CC ATTACEMNT 2 Eli YA. T,7 7 "s-N LA Attn: Laura Stringer, Senior Management Analyst Re: Annual Review of Development Agreement (Tract No. 5053) This narrative is in response to your letter dated 5/24/02 and is part of the application for the review referenced above. Report of items completed prior to this review: a. all improvement plans, on site, been submitted for plan check b. all improvement plans, off -site, been submitted for plan check c. all architecture plans are completed and submitted for plan check d. all landscape plans are completed and submitted for plan check 2. Report of progress during period prior to this review: a. complete hydrology review with the County Flood District b. obtain permit from Cal -Trans for the improvements in LA Avenue. c. signing of the agreement for the installation of the Walnut drain. d. obtaining conceptual approval for on site "water clarification" from the City 3. Explanation of non compliance: With the approval from the County, we expect to receive the final approval from the City's Engineering Dept. within the next 60 days. The actual improvement will be commenced immediately following receipt of approval. C:IEdieWelson ChunglCity of Moorpark Application Narrative.doc CC ATTACHMENT 3 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 ADA.2.6 99- 132548 Rec Fee .00 A. R. .00 Recorded Official Records County of 1 Ventura Richard D. Dean Recorder 1 8:02am 13- Jul -99 MOOR GT 224 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND MP GROUP, LLC RELATING TO CORTE BELLO THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 -1- CC ATTACHMENT 4 .OMDA.2.6 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 MP GROUP, LLC, a California Limited Liability Company (referred to hereinafter as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code section 65864 et 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 the City in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, consisting of approximately thirty -five (35) acres located at 850 Los Angeles Avenue, just west of Liberty Bell Road, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.4. City has approved, or is in the process of approving, General Plan Amendment No. 96 -1 ( "GP"), Zone Change No. 96 -2 ("ZC"), Vesting Tentative Tract Map No. 5053 ("VTTM"), and Residential Planned Development Permit No. 96 -1 ("RPD") . Implementation of these land use entitlements is subject to a mitigation monitoring program that was approved by City on June 2, 1999(the "Mitigation Monitoring Program "). (The GP, ZC, VTTM, RPD and Mitigation Monitoring Program are collectively referred to as the "Project Approvals ".) The Project Approvals authorize a residential development commonly known as "Corte Bello ", consisting of 247 detached single family dwelling units on the Property (the "Project "). 1.5. [INTENTIONALLY LEFT BLANK] -2- ADA.2.6 1.6. 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. 1.7. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.8. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City as amended by General Plan Amendment No. 96 -1. 1.9. On November 9, 1998, and November 23, 1998, 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. 1.10 On March 3, 1999 the City Council considered the Project and referred it to the Planning Commission for further review. The Planning Commission reviewed the Project on May 24, 1999 and forwarded its recommendations to the City Council. 1.11 On March 17, 1999 the Moorpark City Council agreed to consider a General Plan Amendment for certain real property consisting of approximately five (5) acres located west of Liberty Bell Road (Liberty Bell Road Property) and as more specifically described by the legal description set forth in Exhibit B, which exhibit is attached hereto and incorporated herein by this reference. In the event the Moorpark City Council approves a General Plan Amendment for Developer or CLP Investment, LLC, a California Limited Liability Company (CLP) but not for anyone else for the Liberty Bell Road Property for a residential land use designation of either Medium or High with accompanying Residential Planned Development zoning, Residential Planned Development Permit and Tract Map, the affordable housing obligation shall be fifteen percent (15 %) of the approved dwelling units to be sold to -3- MDA.2.6 persons /families at the moderate income level. The size of the dwelling units for the referenced dwelling units shall be no less than seventy five percent (75 %) of the average size of the other dwelling units approved by the City for the Liberty Bell Road Property. The sale of the referenced dwelling units shall be subject to the applicable provisions of the Affordable Housing Implementation and Resale Restriction Plan referenced in Section 6.10 of this Agreement relative to resale and other provisions as determined by City at its sole discretion so that City may require a portion of the difference between the then market sales price and the actual sale amount be paid to the City at the time the original purchaser sells the dwelling unit. 1.12 On December 2, 1998 , the City Council of City ( "City Council ") commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing approved the Agreement by Ordinance No. 257 ( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area ". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project area that has been 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 the 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 the Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the effective date of the sale or transfer, provided that the Developer (i) was -4- 4 5. ADA.2.6 not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivers to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state building requirements that are then in effect (collectively "the Building Codes "). 4.4. Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. 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 -5- .OMDA.2.6 therein to provide for the timing or rate of development resulted in a later- adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment. In furtherance of the Parties' intent, as set forth in this section, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of dwellings units that can be built each year within the Project Area. However, nothing in this section shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps other than Vesting Tentative Tract Map NO. 5053(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. or JMDA.2.6 The term of any Subsequent Approval, except a tentative map, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the square footage or number of proposed buildings or other improvements from what is allowed by the Project Approvals; (c) limit or control the rate, timing, phasing or 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; -7- )MDA.2.6 (d) are not uniformly applied on a City -wide basis to all substantially similar types of development projects or to all properties with similar land use designations; (e) control residential or commercial rents; or (f) modifies the land use from what is permitted by the General Plan Land Use Element at the date the Enabling Ordinance is adopted or that prohibits or restricts the establishment or expansion of urban services including but not limited to community sewer systems to the Project. 5.4. Modification Of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for minor modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such minor modification shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement. 5.5. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required by Project Approvals to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.6. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and 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, JMDA.2.6 including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. [INTENTIONALLY LEFT BLANK] 6.3. [INTENTIONALLY LEFT BLANK] 6.4. The fee in lieu of park Land dedication pursuant to the City's Subdivision Ordinance requirements (adopted by Ordinance No. 6) shall be paid prior to the recordation of each phase of the final tract map. The fee shall be calculated pursuant to the City's Subdivision Ordinance requirements but shall be no less than twenty five hundred dollars ($2,500.00) for each residential lot for all lots including those designated for Affordable Housing Units. 6.5. As a condition of the issuance of a building permit for each dwelling unit 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 two thousand five hundred dollars ($2,500.00). The fee shall be adjusted annually (commencing one (1) year after the first residential building permit is issued within the Project) by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). 6.6. As a condition of the issuance of a building permit for each residential unit, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by the City in its sole and unfettered t. ,MDA.2.6 discretion. On the effective date of this Agreement, the amount of the Citywide Traffic Fee shall be $3,000 per dwelling unit. Commencing January 1, 2000, and annually thereafter, the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is available on December 31 of the preceding year ( "annual indexing "). In the event there 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. Any Citywide Traffic Fee still due at the time the City, Caltrans, private developer with City's approval, or any other public or private entity awards a contract to construct an underground rail crossing west of Gabbert Road, shall be paid at the then applicable rate, within ninety (90) days of said contract award. 6.7. On the operative date of this Agreement Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement. 6.8. Developer hereby waives any right it may have under California Government Code Section 65915 et. Seq., or any successor thereto, or any provision of federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of dwelling units approved for this project. 6.9. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway landscaping, street lighting, and if requested by the City Council, parks for the provision of special benefits conferred by same, upon properties within the Project. Developer further agrees to obligate the property owners association to provide for maintenance of parkway landscaping and street lighting in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. 6.10. Developer shall provide eleven (11)three (3) bedroom units at approximately 1,027 square feet and eleven (11) four (4) bedroom units at approximately 1,131 square feet to be sold to buyers who meet the criteria -10- 7MDA.2.6 for low income (80% of median income) . The initial sales price, buyer eligibility, resale restrictions, respective role of City and Developer, and any other item determined necessary by the City shall be set forth in the Affordable Housing Implementation and Resale Restriction Plan, which shall be approved by the City Council in its sole and unfettered discretion prior to recordation of the first final Tract Map for this project. In addition, in lieu of constructing the fifteen (15) Very Low Income Affordable Housing Units, Developer shall pay a fee of Sixty Thousand Dollars ($60,000) each, or a total of Nine Hundred Thousand Dollars ($900,000) to the City (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. A pro -rata portion of the In -Lieu Fee in the amount of Three Thousand Six Hundred Forty Three Dollars and Seventy Three cents ($3,643.77) shall be paid prior to issuance of the building permit for each dwelling unit in the Project. 6.11. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. Developer further agrees to not protest these fees as may be authorized by Section 66000, et. Seq. of the California Government Code or any other applicable state or federal law. 6.12 Within thirty (30) days of the Effective Date of this Agreement, Developer shall deposit One Hundred Thousand Dollars ($100,000.00) (Deposit) with the City for the purpose of managing and coordinating (Project Management) the widening of Los Angeles Avenue (SR 118) to three (3) travel lanes in each direction between Moorpark Avenue and Spring Road (Widening Project). City shall at its sole and unfettered discretion retain one or more private consultants to provide Project Management. Project Management shall include but not be limited to coordination with City, Caltrans, and other public agencies and private utilities, preparation of Caltrans Project Study Report (PSR) and Project Report (PR), preparation of conceptual design alternatives and acquisition of any necessary rights- -11- .. �_ pz ..e.. '3i i.,i JMDA.2.6 of -way, except that it shall not include preparation of final design plans and specifications and construction administration and inspection. Any portion of the Deposit remaining after completion of Project Management shall be returned without interest to Developer within ninety (90) days after completion of said Project Management. 7. City Agreements. 7.1. City shall process in an expedited manner to the extent possible all plan checking, excavation, grading, building, encroachment and street improvement permits, certificates of occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation, construction, development, improvement, use and occupancy of the Project. 7.2. City agrees that units reserved for and sold to low income buyers shall not be subject to air quality (Traffic System Management) fees. 7.3 City agrees to condition Vesting Tentative Tract Map No. 5053 to expire ten (10) years after its approval or conditional approval, or upon expiration or earlier termination of this Agreement, whichever occurs first. 7.4. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the conditions of the approved tentative map and contingent on City Engineer and Director of Community Development acceptance of a Performance Bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of the rough grading. 7.5. City shall allow construction of one or more model homes prior to City Council approval of a final subdivision map for the VTTM. 7.6. City shall allow recordation of final maps for the VTTM in phases. 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 -12- .'OMDA.2.6 suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by the Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code chapter 15.40 of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of the Developer hereunder or render this Agreement invalid or void. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay ", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to Have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or -13- :OMDA.2.6 (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it 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 be deemed given on the date that it is personally delivered or on the third day following the day after it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. -14- q..k :OMDA.2.6 The remedies for breach of the Agreement by the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.9 or 6.10 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and -15- +F 0 :OMDA.2.6 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. 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 Developer. 16. Indemnification. The Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, the Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or any provision thereof, or the Project Approvals, or any Subsequent Approvals. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. �i OMDA.2.6 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. 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. -17- .OMDA.2.6 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Ordinance No. 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. 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 -18- .! i..'4 _L �a i :OMDA.2.6 its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. Attorneys' fees under this section shall include attorneys' fees on any appeal and any post - judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, MP Group, LLC and City of Moorpark have executed this Development Agreement on Tune 11, 1999 amm ATTEST Deborah S. Traf fensfdat City Clerk MP GROUP, LLC By: Nel Pre MOORPARK 799 Moorpark Avenue Moorpark, California 93021 STATE OF CALIFORNIA) COUNTY OF VENTURA ) ss. (805) 529 -6864 On this 16th day of June in the year 1999, before me Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, personally appeared Patrick Hunter,, personally known to me to be the person who executed this instrument as the Mayor of the City of Moorpark and acknowledged to me that the City executed it. Witness my hand and Official Seal PATRICK HUNTER CHRISTOPHER EVANS CLINT D. HARPER DEBBIE RODGERS JOHN E. VVULNIAK Mayor Mayor Pro Tem Councilmember Councilmember Councilmember AMER.1 } STATE OF CALIFORNIA }ss. COUNTY OF orange } On June 11, 1998 , before me, Caen A. Elliott, Notary Public , personally appeared Nelson Chung personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose narD_e(s) is /are subscribed to the within instrument and acknowledged to me that he she /they executed the same in his her /their authorized capacity(ies), and that by his her /their signatures) on the instrument the persons) or the entity upon behalf of which the persQa(s) acted, executed the instrument. WITI' Sign )] �+ NOW PJW - Cdkx M % M,�� 4.AW (This area for official notarial seal) Title of Document Date of Document Other signatures not acknowledged No. of Pages 3008 (1/94) (General) First American Titi@.Ipj'urar�i;e,Gompany S. , EXHIBIT A LEGAL DESCRIPTION Assessor's Parcel Nos. 506- 030 -135, -145, -155, -165, and -180. PACCOMDA.2.6 . . EXHIBIT B LEGAL DESCRIPTION THAT PORTION OF LOT K, TRACT L, RANCHO SIMI, IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE CENTERLINE OF LOS ANGELES AVENUE, 60 FEET WIDE, AT THE NORTHEASTERLY CORNER OF SAID LOT K: THENCE, 1ST SOUTH 00 002105" WEST 1018.38 FEET; AT 30 FEET A 4X4 POST WITH BOLT AND WASHER IN THE CENTER; AT 1018.38 FEET A 1 -INCH PIPE MARKED WITH METAL TAG STAMPED L.S. 1842 SET ON THE SOUTHEASTERLY CORNER OF SAID LOT K; THENCE, 2ND NORTH 65 054132" WEST 16.43 FEET ALONG THE SOUTHERLY LING OF SAID-°LOT K TO THE TRUE POINT OF BEGINNING; THENCE, 3RD NORTH 65 054'32" WEST 438.04 FEET ALONG THE SOUTHERLY LINE OF SAID LOT K TO A 1 -INCH PIPE MARKED WITH A METAL TAG STAMPED L.S. 1842; THENCE, 4TH NORTH 00 002105" EAST 442.21 FEET; THENCE, 5TH NORTH 89 057110" WEST 384.62 FEET TO AN INTERSECTION OF THE WESTERLY LINE OF DEED RECORDED MAY 4, 1993, AS DOCUMENTED NO. 93- 079362 OF OFFICIAL RECORDS; THENCE, 6TH SOUTH 02 000149" EAST 14.54 FEET; THENCE, 7TH SOUTH 89 046'09" EAST 7.03 FEET; THENCE, 8TH SOUTH 04 028127" EAST 99.64 FEET; THENCE, 9TH SOUTH 02 000'05" WEST 506.85 FEET TO THE TRUE POINT OF BEGINNING. EXCEPT THE EASTERLY 15 FEET, AS DESCRIBED IN THE DEED TO CALIFORNIA RANCH COMPANY, RECORDED IN BOOK 155, PAGE 31 OF DEEDS. ALSO EXCEPT THAT CERTAIN LAND CONVEYED TO THE CITY OF MOORPARK, FOR PUBLIC ROAD PURPOSES BY DEED RECORDED MAY 4, 1993, AS DOCUMENT NO. 93- 079362 OF OFFICIAL RECORDS. PACCOIDA . 2 .6 EXHIBIT C To City: City of Moorpark' 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: MP Group LLC c/o Pacific Communities Builder, Inc. 1000 Dove Street, Suite 100 Newport Beach, CA 92660 Attn. Nelson Chung