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Home My WebLink AboutAGENDA REPORT 2003 1203 CC REG ITEM 10F0 ITEM 10 • F. i�T'NP:'�... �.. NJ .c MOORPARK CITY COUNCIL AGENDA REPORT TO: The Honorable City Council FROM: Barry K. Hogan, Community Development Director.✓ Prepared by Laura Stringer, Senior Managemen alyst DATE: November 12, 2003 (CC Meeting of 12/3/03) ?5�� SUBJECT: Consider Annual Review of Development Agreement Established in Connection with Residential Planned Development Permit No. 2001 -02, a 190 -unit Senior Apartment Project Located at the Terminus of Park Lane, South of Park Crest Lane and North of the Arroyo Simi (Vintage Crest Senior Apartments, L.P. /USA Properties) BACKGROUND On September 18, 2002, the Moorpark City Council adopted Ordinance No. 285 (effective October 18, 2002), approving a Development Agreement with Vintage Crest Senior Apartments, L.P. (USA Properties). The Agreement was approved in connection with Residential Planned Development No. 2001 -02, a 190 -unit, one - hundred percent (1000) affordable senior apartment project, located generally north of the Arroyo Simi at the intersection of Park Lane and Park Crest Lane. The terms of the Agreement require that the Agreement remain in full force and effect for five (5) years from the operative date of the Agreement (until October 18, 2007) or until one (1) year after the occupancy of the one - hundred - ninetieth (190th) apartment unit, whichever occurs later. DISCUSSION This first annual review of the Development Agreement is occurring as required by the Government Code and the Moorpark Municipal Code. The project is currently under construction and building permits for all 190 units have been issued. Construction is tentatively projected to be completed during April 2004. 00007'7 Honorable City Council December 3, 2003 Page 2 Developer Compliance with Terms of Aareement The Developer's responsibilities are included in Section 6 of the agreement and include seventeen (17) specific provisions, as summarized below. # REQUIREMENT STATUS 1. Compliance with Development To date, developer is in Agreement, Project Approvals compliance with this and Subsequent approvals. aspect of the agreement. 2. Dedicated lands to be free and The developer is clear of liens and currently negotiating encumbrances. with adjacent property owners on acquisition of required off -site property. 3. Community Services Fee at Paid for 190 units $2,700 per unit. ($513,000) on April 11, 2003. 4. Park Fee at $2,000 per unit. Paid for 190 units ($380,000) on April 11, 2003. 5. Development Fee at $2,750 per Paid for 190 units unit. ($522,500) on April 11, 2003. 6. Citywide Traffic Fee at $800 Paid for 190 units per unit. ($152,000) on April 11, 2003. 7. Payment of all outstanding city The project processing processing and environmental account balance is processing costs. current and the $1,760 deposit for Development Agreement - Annual Review was paid on November 6, 2003. 8. Waiver of rights to any density No additional density bonus beyond 190 units approved bonus has been requested for this project or granted. 9. Agreement to cast affirmative To date, the developer vote for the formation of an has complied with this assessment district with the aspect of the agreement. power to levy assessments for the maintenance of parkway landscaping, street lighting or parks conferring special benefits. \ \mor _pri —sere \City Share \Community Development \ADMIN \AGMTS \D A \2002 -01 USA \Staff Report \cc 031203.doc 0000'78 Honorable City Council December 3, 2003 Page 3 # REQUIREMENT STATUS 10. Guarantee affordability of 100% Prior to inspection for of the units: occupancy of the first Nineteen (19) very low income residential unit, an (50% or less of Ventura County Affordable Housing median income), with a minimum Implementation and Rental of twelve (12) two - bedroom Restriction Plan and units occupied by very -low Affordable Housing income tenants for the life of Agreement shall be the project. approved and executed. Staff is currently One- hundred - forty -two (142) working with the low income (60% or less of developer on the Plan and Ventura County median Agreement. income). 11. Agreement to pay all City All development and capital improvement, capital improvement fees development and processing fees have been paid to date. and agreement not to protest fees. 12. Construct Park Lane consistent Park Lane street with Ventura County Standard improvements plans and Plate B -3 -C and ADA bonds have been submitted Requirements. Reconstruct and are currently being broken sidewalk, curb and reviewed by the City gutter from the project to Los Engineer. Angeles Avenue. 13. Agreement to pay monthly access Per the developer, fee of 5% of gross revenue television services will generated, should cable be provided within the television services be provided City Cable Franchise. outside the City Cable Franchise, and that the City's government channel be available to all units. 14. Agreement that any fees and To date, the developer payments be made without has complied with this reservation and waives to right aspect of the agreement. to payment under protest. 15. Agreement to pay applicable Los All Building Permits have Angeles Avenue AOC Fees minus been issued. $1,052 if Building Permits not issued by December 31, 2004 \ \mor pri_sery \City Share \Community Development \ADMIN \AGMTS \D A \2002 -01 USA \Staff Report \cc 031203.doc 0000'79 Honorable City Council December 3, 2003 Page 4 # REQUIREMENT STATUS 16. Agreement for "Payment in Lieu Although Section 6.16 of of Taxes" (PILOT) including the Development Agreement payment schedule. requires action on this grading, building, encroachment item prior to grading or and street improvement permits; building permits, staff certificate of occupancy, allowed permits to be utility connection issued based upon City authorizations, etc. Council direction not to 2. Agreement that the Los Angeles delay this project. Staff Avenue Area of Contribution is currently reviewing (AOC) Fee for the project shall the agreement, which must be in the amount of $200,000, so be approved by the City long as, Building Permits are Council prior to issued prior to December 31, occupancy of the first 2004. residential unit. 17. Annual Review and Mitigation The developer has Monitoring Program submitted the application the project shall be in the and deposit for annual amount of $200 per unit. review and is to date in compliance with the Mitigation Monitoring Program. City Compliance with Terms of Agreement The City's responsibilities are included in Section 7 of the agreement and include seven (7) specific provisions, as summarized below. # REQUIREMENT STATUS 1. Expedite (to the extent Permits have been issued possible) the processing of for construction of plan checking; excavation, improvements and grading, building, encroachment buildings. and street improvement permits; certificate of occupancy, utility connection authorizations, etc. 2. Agreement that the Los Angeles Area of Contribution (AOC) Avenue Area of Contribution Fee ($200,000) was paid (AOC) Fee for the project shall April 11, 2003. All be in the amount of $200,000, so Building Permits have been long as, Building Permits are issued. issued prior to December 31, 2004. 3. Agreement that the Traffic Paid for 190 units System Management Fee (TSM) for ($38,000) on April 11, the project shall be in the 2003. All Building Permits amount of $200 per unit. have been issued. S: \Community Development \ADMIN \AGMTS \D A \2002 -01 USA \Staff Report \cc 031203.doc 0 00 080 Honorable City Council December 3, 2003 Page 5 # REQUIREMENT STATUS 4. Agreement to allow certain The City is in compliance modifications to the City Zoning with this aspect of the Code and development standards, agreement. including parking ratios, density, and reduction in certain fees so long as Building Permits are issued prior to December 31, 2004. 5. Agreement that Citywide Traffic Area of Contribution (AOC) Fee shall be $800 per unit so Fee ($152,000) was paid long as Building Permits are April 11, 2003. All issued prior to December 31, Building Permits have been 2004. issued. 6. Agreement to payment of $4,000 Paid on April 11, 2003. toward impacted intersections, in lieu of a Traffic Study. 7. Agreement that certain fees are The City is in compliance not applicable for repair or with this aspect of the rebuild due to fire, earthquake agreement. or other casualty. 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 Vintage Crest Senior Apartments, L.P. /USA Properties 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, Vintage Crest Senior Apartments, L.P. /USA Properties 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. Letter from USA Properties, dated November 3, 2003. 4. Development Agreement S: \Community Development \ADMIN \AGMTS \D A \2002 -01 USA \Staff Report \cc 031203.doc 0 00 " ^ IL n H H n z H 0 C� Location Map SIERRA J IL EV REST - - 0 g VE �� J a0� AVE. LOS ANGELES (ST. HWY. 118) AV ri UNIDOS AVE. - -- UNIDOS AVE. 1 L1� 1 J� - -------- �F JAMES WEAK AVE. 2A JAMES WEAK VILLA CAMPESINA AVE. j r�Ij E AV -- - - -- _ ___ - -- - Q IN 3AVILLA CAMPESINAW w =- a MAJESTIC -' - C' T a a - -- - DR A $ SCALE 1 :5,462 500 0 500 1,000 1,500 FEET N N H x / E .f.NCY ALCktS rt- 1 I i [ Ft �� t - - - +, ------- - - - -�, -- ul. r J , L.. 5 . FfN E I � IF F FASUON e 1 / .,� I�! SW.- erAwnow au• ,i * •�R rl r PARK W- NNOx dD - - _ _' _�_ I _ '2_ .T� N.n lD w N07E$ ` i __ _ _ .. �- T_.- xc __ R NE OF All yy / NpN F aEYIER- EAfEgEMi V _ l{ - I /I E ANO CAP - DV! S E .T -1-1; IOCAi ONS R PUPFJt NF N / ONN .E, CUNC iFih B fS. U F : ASP IALr -12t, v 1 i/ F u0 E .TEE OIVI DWLS� - O 1 / )1}E / NIN WIOE SDE—" oRE yV; - l f,!' I t- 1 )� A - J 5E1' N1 UPE GS FOR E —1 i I F I Ea -• - AR NOT 1 PATH ED 1R5% / IL L TO LIIE 5 D UN R p 11 j -I I i .1 ( i i 1.611 i� ORTHE 2% CROSS ION AP5%_i IOPE 0 F I� • 7 - 1 y / 'EE ML AND AND6GPE ORAWINOS F R REUU CD . OR A ME & LAN SLOPE. V IT ,mL A. unoscAPE owes_ i `dOM EA. PARKING ACE ACCES s N LINO V MASONRY WALL I _ T.1 j o ✓ _ pl � �� S- LANDSCAPE DRAM FOR .C-1— ROUTE 'fHE ES'DLE PARKNC SPACES TO UHF— ISIOLL c. [NTRAN�ES- el1�N r Lin r j \ Ll T i �� DATA 99 1BR UNR 9A 2BR UN1iS G]l , �_�_`•- _�- __- .- �_�.� -,� - 1 — - — — . _ . _ . _� .. _ . _ . -- ACCF955OKYN B ItUn�GS. \ IVP COVERED SPACE/ TYPICAL CARPORT, \ RECREARON BUILDING. 1.05] S.F. LINDEN SEPARATE IARNTFNAUCE ElIIL01N0: RID S.F. 5' MASONRY FT— PERMIT OPEN SPACE LEGMIID N— X WlILDINf. utluRFi1 /LETI ER too UN .ES ACRES = 29.1 U/A t^rl�uPPER EIOOR TYPE / —0." UNR NUUR[R uM UUU. II LL LOM'ER 111-1 UMT — NUNBER T —,1 ffMIUSURE, TYP. SEE SNEEf A'l.1 STANDARD WEN SPACE _ 1 '.1D —N.N. COVERED SPACE - 10 NUMBER OF STANDARD OPEN SPAf,ES. SEF CMI. DRAWIN4S. m.. ,HANDiCAFPED PARNING SPICE - 1A9 x19' L.� .WEER DF STANDARD COVERED SPACES. SEE CPAL WAWIen:S. 1 MI -DED. M ACCE55IBLF SPACES FOR HAt10N:AP1E1 USE, SEE LML ORAWINOS. STAN OPEN: - 9A SPACES STAN —D COVERED: 1]] SPACES • LA:MED W10RE55 NL.R.N. SEE EEECRCAI. OWLS. HANDICAPYEU OPEN I PACES ( CAPP A MAYinBLE UNR W/ REPOSff10NARtF SINN AT i1R51 FI OOR UNI1 iDANDI ED COVERED: 2 SPACE.$ TN. SPACES: = 191 (5% OF 98 FIRST il.OgV IINIFS = 5j TRANSFORMER. SEE. CM, P—RDS PARKINf. NAiIO. I ;190 1 0 SPAl;ES /UNU C WS METER5, SEE -L WAWINOS E ELECTRIC METERS, SEE CMI. AND EIECT ORAw1N- .FFIRE RISER LLDSET, SEF ANS 1 :- -1 SITE PLAN P PD1E. SEE DRAWN , JA flAllf t USA Properties Fund November 3, 2003 Laura Stringer Senior Management Analyst City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Subject: Vintage Crest Senior Apartments - Development Agreement Annual Review Dear Laura: Please accept this letter as a Narrative addressing the current completion status of the Development Agreement for the above referenced project. This narrative is being provided to meet the submittal requirements outlined in the City of Moorpark's Development Agreement Annual Review Application. USA Properties started construction on Vintage Crest Senior Apartments in February 2003. Since that time USA has progressed with the construction based on a 14 -month completion schedule. We are currently projecting a completion date of April 2004. As of the date of this letter, the following items from the Development Agreement are complete: Section 6.3. Community Services Fee has been paid. Section 6.4. Park Fee has been paid. Section 6.5. Development Fee has been paid. Section 6.6. Citywide Traffic Fee has been paid. Section 6.7. Outstanding City processing and environmental processing costs have been paid and continue to be paid, as USA is made aware of deficits. Section 6.10. USA has submitted a draft Affordable Housing Plan that addresses the requirements of this section to the City for review. Section 6.11. All City capital improvement, development, and processing fees requested of USA have been paid, and continue to be paid as they are requested. Section 6.15. Los Angeles Avenue Area of Contribution (AOC) fee of $200,000 has been paid. Section 6.16. The PILOT agreement has presumably been finalized and submitted to the City for recordation. In addition, the following items are in the process of being completed: Section 6.1. Conditions of Approval not already completed concurrently with the approved plans and building permits are being completed as part of the normal course of construction. CC ATTACHMENT 3 2440 Professional Drive, Roseville, California 95661 -7773 - (916) 773 -6060 • FAX (916) 773-5866000084 Section 6.2. This provision only applies to the Park Lane Right -of -Way acquisition referenced in Section 6.12. All land dedicated to the City will be free of liens and encumbrances. This condition is currently in the process of being fulfilled as part of the normal course of construction and private negotiations with neighboring landowners. Section 6.12. Park Lane improvement plans are currently being reviewed and approved by the Moorpark City Engineer's office. These plans meet the requirements of this condition and the physical improvements will be constructed as such. All other items in the Development Agreement do not appear to require action for USA Properties Fund to be in compliance at this time. We look forward to completing this project with the City in the coming months. If there are any questions or comments regarding this narrative, please feel free to call me at (916) 773 -6060, Ext. 234. Sincerely, USA Properties Fund, Inc. Milo L. Terzich; P.E. Development Manager Cc: Barry Hogan John Newton Steve Gall Steve Defant Katherine Klein 000085 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 IIIIIIIIIIIIIIIIIIIII 11111111111111111111111 Ventura, County Recorder RICHARD D. DEAN DOC. 2002 - 0263670 -00 Acct 55 -MOOR - City of Moorpark Monday, OCT 28, 2002 08:02:00 Ttl Pd $0.00 Nbr- 0ENOAI2R601 -zs DEVELOPMENT AGREEMENT BY AND BETWEEN THq CITY OF MOORPARK AND VINTAGE CREST SENIOR APARTMENTS, L.P. THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 CC ATTACHMENT 4 1111 1:. 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 VINTAGE CREST SENIOR APARTMENTS, L.P., a California limited partnership (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 se q. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within the City in order to establish certainty in the development process. 1.2. Developer is owner in fee simple of certain real property in the City of Moorpark, consisting of approximately nine and forty -eight hundredths (9.48) acres generally located north of,. the Arroyo Simi and south of Park Lane and more,specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.3. City has approved, or is in the process of approving, General Plan Amendment No. 2002 -01 ( "GP "), Zone Change No. 2002 -01 ( "ZC"), and Residential Planned Development Permit No. 2002 -02 ( "RPD "). Implementation of these land use entitlements is subject to a mitigation measures monitoring and reporting program that was approved by City on July 17, 2002 (the "Mitigation Monitoring Program "). (The GP, ZC, RPD and Mitigation Monitoring Program are collectively referred to as the "Project Approvals ".) The Project Approvals authorize a residential development consisting of 190 apartments on the Property (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 2 USA PROPERTIES DEV AGR 2002 -FINAL 00008"7 limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1.5. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.6. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City as amended by General Plan Amendment No. 2002 -01. 1.7. On August 26, 2002, 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 September 4, 2002, 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. 285 ( "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 terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which the Developer has a legal interest is, and shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether or not any reference to the 3 USA PROPERTIES DEV AGR 2002 -FINAL a"* Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.2. Release Upon Transfer. Upon the sale or transfer of the Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the effective date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivers to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted use�p 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 in L USA PROPERTIES DEV AGR 2002 -FINAL 000089 5 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 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 provided the Property is developed in accordance with the Project Approvals and this Agreement. 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 the Project Approva= the City Council referendum process, Property, unless the the amendment. Approvals. No amendment of any of .s, whether adopted or approved by or through the initiative or shall apply to any portion of the Developer has agreed in writing to 5.3. Issuance of Subsequent Approvals. land use approvals, entitlements and without limitation subdivision 5 Applications for permits, including maps, subdivision USA PROPERTIES DEV AGR 2002 -FINAL 000'090 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 a final subdivision map or building permits. The term of any Subsequent Approval, except a tentative map, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not,remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement,, the Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: (a) change any permitted or uses of the Property from Project Approvals; conditional permitted what is allowed by the USA PROPERTIES DEV AGR 2002 -FINAL 000091L (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; (d) are not uniformly applied on a City -wide basis to all substantially similar types of development projects or to all properties with similar land use designations; (e) control residential rents; or (f) modify 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 7 USA PROPERTIES DEV AGR 2002 -FINAL 000092 0 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, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. Developer Agreements. 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. All lands and4interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere `with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. As a condition of issuance of a building permit for each residential dwelling unit, Developer shall pay City a community services fee as described herein (Community Services Fee). The Community Services Fee may be expended by City in its sole and unfettered discretion. The amount of the Community Services Fee shall be Two Thousand Seven Hundred Dollars ($2,700.00) per residential unit. The Community Services Fee shall be adjusted annually commencing on January 1, 2005, and each January 1 thereafter 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 8 USA PROPERTIES DEV AGR 2002 -FINAL 000093 consumers within the Los Angeles /Riverside /Orange Co. metropolitan area during the prior year. The first such calculation shall be made using the month of October 2004 over the month of October 2003 and so forth each January 1 until all Community Services Fees are paid. In the event there is a decrease in the referenced CPI for any annual adjustment, the Community Services Fee shall remain at its then current amount until such time as the next subsequent annual adjustment results in an increase. 6.4. The fee in lieu of park land dedication (Park Fee) pursuant to the requirements of City Ordinance No. 52 shall be paid prior to the issuance of the building permit for each residential unit. The Park Fee may be expended by the City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Park Fee shall be Two Thousand Dollars ($2,000.00) per residential unit. Commencing January 1, 2005, and annually thereafter, the Park Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is available on December 31 of the preceding year ( "annual indexing "). In the event there is a decrease in the referenced Index for any annual indexing, the Park Fee shall remain at its then current amount until, such time as the next subsequent annual indexing results in an increase. 6.5. As a condition of the issuance of a building permit for each residential unit, Developer shall pay City a development fee as described herein (the "Development Fee"). The Development Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Development Fee shall be two thousand seven hundred fifty dollars ($2,750.00) for each residential unit. The fee shall be adjusted annually on January 1, 2005, and each January 1 thereafter 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 /Riverside /Orange Co. metropolitan area during the prior year. The first such calculation shall be made using the month of October 2004 over the month of October 2003 and so forth each January 1 until all Development Fees are 9 USA PROPERTIES DEV AGR 2002 -FINAL 000094 paid. In the event there is a decrease in the referenced CPI for any annual adjustment, the Development Fee shall remain at its then current amount until such time as the next subsequent annual adjustment results in an increase. 6.6. As a condition of the issuance of a building permit for each residential unit, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by the City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Eight Hundred Dollars ($800.00) per residential unit for all Citywide Traffic Fees paid on or before December 31, 2004. Developer agrees that the Citywide Traffic Fee for all residential units with a building permit issued after December 31, 2004, shall be Four Thousand Two Hundred Forty Dollars ($4,240.00) per unit plus the annual indexing as hereinafter specified. Commencing January 1, 2006, 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 results in an increase. 6.7. On the operative date of this Agreement Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement. 6.8. Developer hereby waives any right it may have under California Government Code Section 65915 et. Seq., or any successor thereto, or any provision of federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of residential units approved for this project to exceed a total of One Hundred Ninety (190) dwelling units. 6.9. Developer agrees for the life of the Project to cast affirmative ballots for the increase of any assessments for existing assessment districts for the maintenance 10 USA PROPERTIES DEV AGR 2002 -FINAL 000095 of parkway and median landscaping, street lighting, and parks conferring special benefits, and for the formation of any new assessment district for the purposes listed above in order to supplement then existing assessments upon properties within the Project. Developer also agrees to add this language to any Regulatory Agreement as part of the sale of any revenue bonds issued by the City for this Project. 6.10 Developer, in consideration for a density bonus obtained through the Project Approvals that is greater than would otherwise be available, agrees to guarantee the affordability of one hundred percent (100 %) of all residential units for the life of the Project as follows: 48 units at very low income (50% of median income) and 142 units at low income (60% of median income). A minimum of twelve (12) two - bedroom units shall be occupied by qualified very low income tenants at all times for the life of the Project. The method of selecting eligible tenants, tenant eligibility requirements, the respective roles of the City and the Developer and any other items determined necessary by the City shall be set forth in an Affordable Housing Implementation and Rental Restriction Plan (the "Plan "). The Plan shall restrict the rents of all one hundred ninety (190) units as referenced above and shall be consistent with this Agreement and approved by the City Council in its sole and unfettere(4 discretion prior to the final inspection and occupancy approval for the first residential unit in the 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 agrees to the extent permitted by applicable state and federal law to grant priority to eligible Moorpark residents for the life of the Project. Developer shall pay the City's direct costs for preparation and review of the Plan and the Affordable Housing Agreement, up to a maximum of Five Thousand Dollars ($5,000) . By mutual agreement of Developer and City in lieu of the aforementioned Affordable Housing Agreement, these provisions may be incorporated into the Regulatory Agreement if revenue bonds are issued by the City for this Project. In addition, the Developer agrees not to convert the Project to for -sale condominiums, community apartments, 11 USA PROPERTIES DEV AGR 2002 -FINAL 000096 planned development, stock cooperative, or other common interest development, or as congregate care or assisted living facility for the life of 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 and statutes amendatory or supplementary thereto or any other applicable state or federal law. 6.12 Developer shall construct Park Lane per modified Ventura County Standard Plate B -3 -C, 68 feet right -of- way; containing 52 feet of roadway (curb face to curb face) , 8 feet wide parkways containing 5 feet wide sidewalks located 6 inches from the right -of -way. This will include all portions of existing Park Lane that do not conform to this section,, Developer shall demonstrate conformance to ADA access requirements at all locations including driveway locations. Prior to approval of the Park Lane improvement plans, an ADA plan shall be reviewed, approved by the City Engineer and held on file to show conformance to those requirements. Improvement plans will detail all locations where utilities or other improvements conflict with normal walk locations and that the plans conform to the City's requirements. Developer shall reconstruct any broken sidewalk, curb and gutter, and street pavement from the Project to Los Angeles Avenue and repave any portions of Park Lane to the satisfaction of the City Engineer. Street sections shall be designed for a 50 -year life. 6.13 Developer agrees that in the event the cable television services or their equivalent are provided to the Project under collective arrangement or any collective means other than by a City Cable Franchisee (including, but not limited to, programming provided over a wireless or satellite system contained within the Project), the apartment management entity shall pay 12 USA PROPERTIES DEV AGR 2002 -FINAL 000097 monthly to City an access fee of five percent (5 %) of gross revenue generated by the provision of those services, or the highest franchise fee required from any City Cable Franchisee, whichever is greater. "Gross revenue" is as defined in Chapter 5.06 of the Moorpark Municipal Code and any successor amendment or supplementary provision thereto. Developer further agrees that in the event cable television services or their equivalent are provided to the Project by any means other than by a City Cable Franchisee, that the City's government channel shall be available to all units as part of any such service on the same basis as if the Project was served by a City Cable Franchisee. Developer also agrees to add this language to any Regulatory Agreement as part of the sale of any revenue bonds issued by the City for this Project. 6.14 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, or any other applicable state or federal law. 6.15 Developer agrees that as a condition of issuance of a building permit for each residential unit on or after January 1, 2005, it shall pay the then applicable Los Angeles Avenue Area of Contribution (AOC) Fee less One Thousand Fifty -two Dollars ($1,052.00) for each residential unit so long as the payment of Two Hundred Thousand Dollars ($200,000.00), as specified in Subsectionr7.2 of this Agreement, has been paid on or before December 31, 2004. Developer agrees this is in addition to the AOC amount specified in Subsection 7.2 of this Agreement. If the AOC payment specified in Subsection 7.2 of this Agreement has not been paid on or before December 31, 2004, Developer agrees to pay the then applicable AOC fee for all residential units prior to issuance of building permits. 6.16 Developer agrees prior to issuance of any grading or building permit for the Project, to enter into an agreement with City to pay City each year Project is otherwise exempt from the payment of any portion or all of the real secured and unsecured property taxes on the Property the amount the City would have received if the Project was not exempt from said payment of property 13 USA PROPERTIES DEV AGR 2002 -FINAL 000098 taxes. The agreement shall include but not be limited to. A. If Project is sold or transferred to another entity, the fee amount shall increase based on the new value of the property as if it was reassessed consistent with applicable laws. B. The first year amount shall be Twenty Thousand Dollars ($20,000.00). In the event payment of the first year amount occurs after December 31, 2004, the first year amount shall increase by one percent (1 %) for each six -month period or any portion thereof until paid. C. The payment amount shall increase two percent (2 %) each year above the prior year amount except as noted in A., above. In no event shall there be a decrease in the amount paid in any year compared to the prior year. D. Payments shall be made twice each year on dates as mutually agreed upon with provisions for penalties and interest in the event of late or non - payment. 6.17 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 Program. 7. City Agreements. 7.1. City shall process in an expedited manner to the extent possible all plan checking, excavation, grading, building, encroachment and street improvement permits, certificates of occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation, construction, development, improvement, use and occupancy of the Project. 7.2. City agrees that the Developer's payment of the Los Angeles Avenue Area of Contribution (AOC) Fee for the project shall be in the amount of Two Hundred Thousand Dollars ($200,000.00) payable prior to issuance of the first building permit for the project so long as the building permits for all residential units in the 14 USA PROPERTIES DEV AGR 2002 -FINAL 000099 Project are issued Developer shall pay unit as specified in for building permits on or before December 31, 2004. the- AOC Fee for each residential Subsection 6.15 of this Agreement issued after January 1, 2005. 7.3 City agrees that the Developer's payment of the Traffic Systems Management (TSM) Fee shall be in the amount of Two Hundred Dollars ($200.00) for each residential dwelling unit payable prior to the issuance of the building permit for each unit. 7.4 City agrees to allow certain modifications to the City Zoning Code and development standards as follows: A. Allow the project to be built with a 1:1 parking ratio with a total of 190 parking spaces required on site. B. Allow the project to be built at a density of twenty (20) units per acre. C. Allow reduction in Park Fees and Citywide Traffic Fees and payment of the Los Angeles Avenue Area of Contribution Fees at the commercial fee rate so long as the Project has all building permits issued for residential units issued prior to December 31, 2004. 7.5 City agrees that the Citywide Traffic Fee shall be in the amount of,Eight Hundred Dollars ($800.00) for each residential unit payable prior to the issuance of the building permit for each residential unit for any building permit issued on or before December 31, 2004. The Citywide Traffic Fee for all units with a building permit issued after December 31, 2004, shall be Four Thousand Two Hundred Forty Dollars ($4,240.00) plus the annual indexing as specified in Subsection 6.6 of this Agreement. 7.6 City agrees that in lieu of preparing a traffic study for the Project and submitting same for review by the City Engineer, the Developer shall pay Four Thousand Dollars ($4,000.00) for impacted intersections. 7.7 Notwithstanding anything in this Agreement to the contrary, in the event Developer repairs or rebuilds the Project consistent with the Project Approvals as a result of fire, earthquake, or other casualty, the following fees would not need to be paid: Community 15 USA PROPERTIES DEV AGR 2002 -FINAL 000100 Services Fee, Park Fee, Development Fee, Citywide Traffic Fee, and Los Angeles Avenue Area of Contribution Fee. 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 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.ppssible 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: 16 USA PROPERTIES DEV AGR 2002 -FINAL 000101 (a) practices, or attempts to practice, any fraud or deceit upon City; or (b) willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be. deemed in breach of this Agreement if it 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. 17 USA PROPERTIES DEV AGR 2002 -FINAL 000102 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. The remedies for breach of the Agreement by the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsections 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.11, or 6.15, 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 M USA PROPERTIES DEV AGR 2002 -FINAL 000103 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 if it takes title to the Property, and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that DeveloperJhas a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Chapter 15.40 of the Moorpark Municipal Code or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part by mutual consent of City and the Developer. 19 USA PROPERTIES DEV AGR 2002 -FINAL 000104 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 any against any action or proceeding to attack, review, set aside, void or annul this Agreement or any provision thereof, or the Project Approvals, or any Subsequent Approvals. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of five (5) years commencing on its operative date or until one (1) year after occupancy of the One Hundred Ninetieth (190th) apartment unit, whichever occurs later, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. v 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 "B" attached hereto and incorporated herein. 20 USA PROPERTIES DEV AGR 2002 -FINAL 000105 Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of the other Party in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any 'other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City 21 USA PROPERTIES DEV AGR 2002-FINAL 000106 within the period required by Chapter 15.40 of the Moorpark Municipal Code or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for 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 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. 22 USA PROPERTIES DEV AGR 2002 -FINAL 000107 IN WITNESS WHEREOF, Vintage Crest Senior Apartments, L. P., and City of Moorpark have executed this Development Agreement on octObey 22 , 2002. ATTEST 1 Deborah S. Traffenste t City Clerk VINTAGE CREST SENIOR APARTMENTS, L.P., a California limited partnership By: USA Properties Fund, Inc., a California corporation Its: Administrative General Partner ON Irord". 9--ra By: Riverside Charitable Corporation a California non - profit corporation Its: Managing Gener Partner By: Kenneth S. RobertsoY, Chairman of the Board 23 000108 USA PROPERTIES DEV AGR 2002 -FINAL MOORPARK r 799 Moorpark Avenue Moorpark, California 93021 (805) 517 -6200 STATE OF CALIFORNIA) COUNTY OF VENTURA ) ss. On this 22nd day of October in the year 2002, 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 Deborah S. Traffenstedt City Clerk %a ®00109 0 PATRICK HUNTER ROSEANN MIKOS CLINT HARPER KEITH F. MILLHOUSE JOHN E. WOZNIAK Mayor Mayor Pro Tem Councilmember Councilmember Councilmember 0 ALL - PURPOSE ACKNOWLEDGEMENT State of California SS. County of C1) l- v?' On okV I�/I%� W, vw6y before me, IF (DATF) 1 r (NOTARY) personally appeared S SIGNER(S) X personally known tome - OR - RECINDA KAY SHAFER COMM. f 1273837 N N ♦ NOTARY PUBLIC - CALIFORNIA .. Orange County "s My Comm. Expires Aug. S3, 1004 ❑ proved to me on the basis of satisfactory evidence to be the person(A) whose name( is /a)6 subscribed to the within instrument and acknowledged to me that he /,�(e /thV executed the same in his /lr /thKr authorized capacity(Ks), and that by his /hXr /t4<iir signaturesV) on the instrument the person(K), or the entity upon behalf of which the person 1W acted, executed the instrument. WITNESS my hand and official seal. NOTARY'S S!PATURE OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgement to an unauthorized document. v CAPACITY CLAIMED BY SIGNER (PRINCIPAL) ❑ INDIVIDUAL ❑ CORPORATE OFFICER SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT T ITLE OR TYPE OF OCUMENT NUMBER OF PAGES DATE OF DOCUMENT OTHER d L RIGHT THUMBPRINT a OF E L SIGNER o C' APA 5/99 VALLEY - SIERRA. 800- 362 -3369 000110 TITLE(S) PARTNER(S) ❑ ATTORNEY -IN -FACT ❑ TRUSTEE(S) ❑ GUARDIAN /CONSERVATOR ❑ OTHER: SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTITY(IES) DESCRIPTION OF ATTACHED DOCUMENT T ITLE OR TYPE OF OCUMENT NUMBER OF PAGES DATE OF DOCUMENT OTHER d L RIGHT THUMBPRINT a OF E L SIGNER o C' APA 5/99 VALLEY - SIERRA. 800- 362 -3369 000110 410 lb CALIFORNIA ALL- PURPOS.. ACKNOWLEDGMENT State of 0, 6/ /0 / l Lt, County of %QCek-- On D —7 , ZaUZ before me, �r t ICu L • M ei n l �Qi'U Ouut, Dots Name and Title of Officer (e.g., *j&SO Doe, Notary Pubr -) personally appeared 1 Names) of Signer(s) 'personally known to me – OR – ❑ o be the person(' whose name(s) is/are subscribed to the within instrument and acknowledged to me that (ashem" executed the s me in his/her /their authorized capacity(ies), and that by Sam ill efftfieir signature(K on the instrument the person(st, or the entity upon behalf of which the person(s) acted, IIKA executed the instrument. !'�IIr11ti11oA Nd" koft tOdeftwf FkKWOotlelN WITNESS my hand and official seal. MI►Cbtntn.eplecl�etit4� Signature of Notary Pu OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: ti Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer(s) Signer's Name: al Individual Corporate Officer Title(s): Partner — 0 Limited O General Attorney -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing RIGHT THUtrIBPRINT OF SIGNER Signer's Name: e Individual Corporate Officer Title(s): Partner — 0 Limited ❑ General Attomey -in -Fact Trustee Guardian or Conservator Other: Signer Is Representing: Al -• r -• -- - •�••�•• �� .........rr nve., r.v. out . ro. • uno9a rant. l,A'd I JL'9 -7784 Prod- No. 5907 Reorder Call Toll -Free i- 800 -8766 -8827 r, EXHIBIT B To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: Steven T. Gall, Executive Vice President USA Properties Fund 2440 Professional Drive, Suite 100 Roseville, CA 95661 -7773 W 000112