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HomeMy WebLinkAboutAGENDA REPORT 2003 1217 CC REG ITEM 10KMOORPARK CITY COUNCIL AGENDA REPORT ITEM /0 • ff. �,.•�.... s� B, To: Honorable City Council From: Nancy Burns , Senior Management Analyst Date: December 10, 2003 (CC Mtg. of December 17, 2003) Subject: Consider Approving an Agreement by and between the City of Moorpark and MOONDANCE- MOORPARK L.P. for the City's Purchase of Three Dwelling Units in RPD 2001 -01, TT 5307, VAR 2002 -01, and Resale of Units to Low Income Households at an Affordable Housing Cost BACKGROUND Section 33413(b)(2)(A)(i) of California Health and Safety Code ( "Redevelopment Law ") requires that 150 of all dwelling units developed within a Redevelopment Project Area be affordable to and occupied by low or moderate income households. Condition No. 7 of Residential Planned Development (RPD) 2001 -01 and Variance (VAR) No. 2002 -01, and Condition No. 24 of Tentative Tract (TT) Map No. 5307 require that two (2) of the twenty -two (22) dwelling units in this project be sold to low income households and that one (1) of the twenty -two (22) units be sold to a very low income household. DISCUSSION Condition No. 25 of TT 5307 requires the preparation and execution of an Affordable Housing Agreement and Affordable Housing Implementation and Resale Restriction Plan, specifying key information pertaining to the affordable units. This condition provides that prior to approval of the first final tract map for this project, the City and Developer may agree for developer to sell the three affordable units to the City, 000306 00030'7 PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") is made and entered into as of the day of , 2003, by and between MOONDANCE - MOORPARK L.P., a California Limited Partnership (hereinafter referred to as "DEVELOPER "), whose General Partner is Colmer Construction, and the CITY OF MOORPARK ( "CITY "). RECITALS WHEREAS, California Health & Safety Code Section 33413(b)(2)(A)(i) requires that "at least 15 per cent of all new and substantially rehabilitated dwelling units developed within a project area under the jurisdiction of an agency by public or private entities or persons other than the agency shall be available at affordable housing cost to, and occupied by, persons and families of low or moderate income "; and WHEREAS, California Health & Safety Code Section 33413(c)(1) requires such dwelling units to remain affordable for the longest feasible time, but for not less than 45 years for homeownership units; and WHEREAS, affordable housing cost is defined in California Health and Safety Code Section 50052.5(b)(2), with the components of affordable housing cost as found in Section 6920 of Title 25 of the California Code of Regulations; and WHEREAS, DEVELOPER desires to develop twenty -two (22) single family detached homes on approximately 2.44 acres of land at the northeast corner of Flory and Los Angeles Avenue (APN No. 512 -0 -11 -012), consistent with the conditions of Tentative Tract Map (TTM) No. 5307, Residential Planned Development (RPD) No. 2001 -01, and Variance (VAR) No. 2002 -01, collectively, the "Project ", and with Resolution No. 2002 -1969, approved May 1, 2002, the "Conditions of Approval "; WHEREAS, Condition No. 24 of TTM No. 5307 and Condition No. 7 of RPD No. 2001 -01 and VAR 2002 -01 require that the developer shall on this project site provide two (2) three (3) bedroom units of not less than 1,138 square feet in size, to be sold to buyers who meet the criteria for low income households established by the United States Department of Housing and Urban Development for the County of Ventura (80% of Median Income); Colmer 12/11/2003 1 000308 and one (1) three (3) bedroom unit of not less than 1,138 square feet in size, to be sold to buyer(s) who meet the criteria for very low income households established by the United States Department of Housing and Urban Development for the County of Ventura (50% of Median Income), collectively, the "affordable units "; and WHEREAS, Condition No. 25 of TTM No. 5307 and Condition No. 8 of RPD No. 2001 -01 and VAR 2002 -01 require the execution of an Affordable Housing Implementation and Resale Restriction Plan and Affordable Housing Agreement between Developer and City, which shall stipulate initial sales prices, locations of the affordable units, buyer eligibility, resale restrictions, respective role of the City and the Developer, and any other item determined necessary by the City, and which Conditions may be satisfied by the sale to the City of the three ( 3 ) affordable units referenced above. NOW, THEREFORE, IT IS AGREED by and between the DEVELOPER and the CITY as follows: SECTION 1. Satisfaction of RPD Conditions. CITY agrees that this Agreement satisfies Condition No. 25 of TTM No. 5307 and Conditions No. 7 and 8 of RPD No. 2001 -01 and VAR No. 2002- 01 including the stipulation for an Affordable Housing Agreement and Affordable Housing Implementation and Resale Restriction Plan. The CITY shall assume DEVELOPER's responsibility for marketing the affordable units, selecting and qualifying eligible buyers for the units, and overseeing the escrow processes to sell the affordable units to low income and very low income households. SECTION 2. Terms of Sale. 2.1 Prior to receiving final inspection approval for the seventh (7th) market rate unit of the project and contingent upon receiving final inspection approval of herein referenced low income unit, DEVELOPER agrees to sell the first low income unit to a qualified low income buyer identified by CITY, or to CITY directly, as determined by CITY in its sole discretion, at the purchase price of one hundred fifty -eight thousand dollars ($158,000). 2.2 Prior to receiving final inspection approval for the fifteenth (15th) market rate unit of the project and contingent upon receiving final inspection approval of herein referenced very low income unit, DEVELOPER agrees to sell the Colmer 12/11/2003 2 000309 said very low income unit to a qualified very low income buyer identified by CITY, or to CITY directly, as determined by CITY in its sole discretion, at the purchase price of ninety -eight thousand dollars ($98,000). 2.3 Prior to receiving final inspection approval for the eighteenth (18th) market rate unit of the project and contingent upon receiving final inspection approval of herein referenced low income unit, DEVELOPER agrees to sell the second said low income unit to a qualified low income buyer identified by CITY, or to CITY directly, as determined by CITY in its sole discretion, at the purchase price of one hundred fifty -eight thousand dollars ($158,000). 2.4 DEVELOPER agrees to deposit thirty -two hundred dollars ($3,200) into each of the aforementioned three (3) escrows at the opening of said escrow for each of the affordable units, as a deposit against its portion of escrow and closing costs. CITY or qualified low or very low income buyer shall pay all escrow and closing costs in excess of this amount. Any funds deposited by DEVELOPER into escrow and not spent shall be refunded to DEVELOPER. 2.5 DEVELOPER shall satisfy all mechanic's, laborer's, materialman's, supplier's, or vendor's liens and any construction loan or other financing affecting any lot of the Project which has been designated for an affordable unit, before the close of escrow for that affordable unit. 2.6 DEVELOPER agrees if it sells any of the affordable units directly to a qualified low or very income buyer, per Section 2.1., 2.2 or 2.3 above, all requirements of the buyer, including, but not limited to, completion of CITY approved Homebuyer Education, and documents for the transaction, including the Promissory Note, Deed of Trust, and Resale Restriction Agreement and Option to Purchase (the "Affordability Covenants ") , shall be approved by the CITY and be included as a requirement of the sale. The language of all such documents shall be approved by CITY at its sole discretion. 2.7 The parties agree that prior to and upon the sale of a required unit to a qualified buyer or CITY, CITY may at its sole discretion take any actions and impose any conditions on said sale or subsequent sale of the unit to ensure ongoing affordability to low and very low income households and related matters. After the sale of a housing unit by DEVELOPER to a qualified buyer or CITY, CITY shall have sole responsibility for Colmer 12/11/2003 3 000310 approving any subsequent sale of that housing unit and enforcing the Affordability Covenants. SECTION 3. Conditions of Purchase and Sale. If a qualified low or very low income buyer is identified by the CITY prior to or at the time of completion of any one of the affordable units, and by the date on which a Certificate of Occupancy is issued for said unit, DEVELOPER shall open escrow for the sale of said unit for the same sales price as herein stipulated and subject to the conditions in Section 2 above, and shall enter escrow directly with the buyer identified by CITY, and proceed to closing of said escrow. If a qualified low or very low income buyer has not been identified at the time DEVELOPER receives its final inspection approval for the seventh (7 th) , fifteenth (15 th ) , and eighteenth (18 th ) market rate units in the project, CITY agrees to purchase the affordable unit required to be provided by DEVELOPER for the amount and at the time specified in subsections 2.1, 2.2, or 2.3, above. SECTION 4. Quality of Construction. DEVELOPER and CITY agree that Lots No. 1, 11 and 25 shall be designated as the lots on which the low and very low income units are constructed. Each affordable unit shall be not less than 1,138 square feet in size. DEVELOPER warrants that the quality of materials and construction techniques of the affordable units sold to the CITY shall in all manner be comparable to that of all other units constructed in this Project and subject to all conditions of TTM 5307, RPD 2001 -01 and VAR No. 2002 -01 and shall meet all Building Codes. SECTION 5. Amenities and Warranties. DEVELOPER acknowledges that the affordable units will not be occupied by the CITY but, if purchased by the CITY, will be sold to qualified low or very low income buyer(s). DEVELOPER agrees to provide the same amenities and home warranties associated with the affordable units purchased by the CITY as the amenities and home warranties associated with the market rate units. DEVELOPER declares that all such warranties shall inure to the benefit of and be enforceable by the ultimate occupants of the affordable units, and that all warranties by subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The CITY shall have the same choices of finish options as purchasers of market rate units in this Project and final walk - through approval of condition of unit before close of sale. Any options provided to buyers of market rate units shall be provided to CITY or buyer(s) of the affordable units, including, but not limited to, color and style choices for Colmer 12/11/2003 4 0003.1. carpeting and other floor coverings, counter tops, roofing materials, exterior stucco and trim of any type, fixtures, and other decorative items. SECTION 6. Defense and Indemnity. DEVELOPER agrees to indemnify, hold harmless and defend at its sole expense, with counsel reasonably acceptable to CITY, any action brought against it or CITY by a purchaser of an affordable unit for any alleged construction defects or related problems, or any action brought by any party to approve, extend or renew any permit, related actions under CEQA, any subsequent permits to implement /construct the Project and this Agreement. DEVELOPER further agrees to reimburse CITY for any court costs and /or attorneys' fees which CITY may be required by the court to pay as a result of any such action. CITY may, at its sole discretion, participate in the defense of any such action at CITY's cost, but such participation shall not relieve DEVELOPER of its obligation under this Section. SECTION 7. Waiver. DEVELOPER hereby covenants not to bring any action against CITY to (a) attack, review, set aside, void, or otherwise annul this Agreement, in whole or in part, or (b) recover any compensation or obtain any relief for any injury, damage, loss, or deprivation of any right alleged to have been sustained as a result of CITY's action on any matter related to this Agreement. SECTION 8. Defaults and Remedies. Each of the following shall constitute an "Event of Default" by the DEVELOPER: 8.1 Failure by the DEVELOPER to duly perform, comply with and observe any of the conditions, terms, or covenants of TTM No. 5307 or RPD No. 2001 -01 or VAR 2002 -01 or this Agreement, if such failure remains uncured thirty (30) days after written notice of such failure from the CITY to the DEVELOPER in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the DEVELOPER fails to commence such cure within such thirty (30) day period or thereafter fails to diligently and continuously proceed with such cure to completion; provided, however, that in no event shall the CITY be precluded from exercising remedies if an Event of Default is not cured within ninety (90) days after the first notice of default is given. If a different period or notice requirement is specified under any other section of this Agreement, then the specific provision shall control. Colmer 12/11/2003 5 000312 8.1.2 Any representation or warranty contained in this Agreement or in any certificate or report submitted to the CITY by DEVELOPER proves to have been incorrect in any material respect when made. 8.1.3 A court having jurisdiction shall have made or rendered a decree or order (a) adjudging DEVELOPER to be bankrupt or insolvent; (b) approving as properly filed a petition seeking reorganization of DEVELOPER or seeking any arrangement on behalf of DEVELOPER under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state or other jurisdiction; (c) appointing a receiver, trustee, liquidator, or assignee of the DEVELOPER in bankruptcy or insolvency or for any of its properties; or (d) directing the winding up or liquidation of the DEVELOPER, providing, however, that any such decree or order described in any of the foregoing subsections shall have continued unstayed or undischarged for a period of ninety (90) days. 8.1.4 The DEVELOPER shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment or execution on any substantial part of its property, unless the property so assigned, sequestered, attached, or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If the DEVELOPER is diligently working to obtain a return or release of the property and the CITY's interests hereunder are not imminently threatened in the CITY's reasonable business judgment, then the CITY shall not declare a default under this subsection. 8.1.5 The DEVELOPER shall have voluntarily suspended its business or dissolved. 8.1.6 Should there occur any default declared by any lender under any loan document or deed of trust relating to any loan made in connection with the Project or property on which Project is to be constructed, which loan is secured by a deed of trust or other instrument of record. 8.2 Liens. DEVELOPER shall pay and promptly discharge when due, at DEVELOPER's cost and expense, all liens, encumbrances and charges upon the Project or the underlying property, or any part thereof or interest therein (except the lien of any mortgage, deed of trust or other recorded instrument Colmer 12/11/2003 6 000313 securing any construction or permanent financing for the Project), provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than forty -five (45) days after the performance thereof. DEVELOPER shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided that within ten days after service of a stop notice or ninety days after recording of a mechanic's lien, DEVELOPER shall deposit with CITY a bond or other security reasonably satisfactory to CITY in such amounts as CITY shall reasonably require, but no more than the amount required to release the lien under California law and provided further that DEVELOPER shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged, and shall, in any event, cause such lien, encumbrance or charge to be removed or discharged not later than sixty (60) days prior to any foreclosure sale. If DEVELOPER shall fail either to remove and discharge any such lien, encumbrance or charge or to deposit security in accordance with the preceding sentence, if applicable, then, in addition to any other right or remedy of CITY, CITY may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount or otherwise giving security for such claim, in such manner as is or may be prescribed by law. DEVELOPER shall, immediately upon demand therefor by CITY, pay to CITY an amount equal to all costs and expenses incurred by CITY in connection with the exercise by CITY of the foregoing right to discharge any such lien, encumbrance or charge. To the extent not paid, all costs and expenses paid by the CITY shall be a lien on the Property pursuant to Civil Code Section 2881. 8.3 Costs of Enforcement. If any Event of Default occurs, CITY may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, DEVELOPER promises to pay to CITY, on demand, the fees and expenses of such attorneys and all other costs of enforcing the obligations secured hereby including without limitation, recording fees, receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred by CITY in connec- tion with the enforcement of the obligations secured hereby, Colmer 12/11/2003 7 000314 whether or not such enforcement includes the filing of a lawsuit. 8.4 Remedies Not Exclusive. CITY shall be entitled to enforce payment and performance of any indebtedness or obligation of DEVELOPER arising under this Agreement and to exercise all rights and powers under this Agreement or any law now or hereafter in force, notwithstanding some or all of the said indebtedness and obligations secured hereby may now or hereafter be otherwise secured, whether by guaranty, mortgage, deed of trust, pledge, lien, assignment or otherwise. Neither the acceptance of this Agreement nor its enforcement by court action shall prejudice or in any manner affect CITY's right to realize upon or enforce any other security now or hereafter held by CITY, it being agreed that CITY shall be entitled to enforce this Agreement and any other security now or hereafter held by CITY, as applicable, in such order and manner as CITY may in its absolute discretion determine. No remedy herein conferred upon or reserved to CITY is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this Agreement to the CITY may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by the CITY, and it may pursue inconsistent remedies. 8.5 Enforcement; Specific Performance. The CITY shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the DEVELOPER to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 8.6 Right of Contest. The DEVELOPER shall have the right to contest in good faith any claim, demand, levy, or assessment the assertion of which would constitute an Event of Default hereunder. Any such contest shall be prosecuted diligently and in a manner unprejudicial to the CITY or the rights of the CITY hereunder. 8.7 Action at Law; No Remedy Exclusive. The CITY may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the DEVELOPER under this Agreement. No remedy herein conferred upon or reserved by the CITY is intended to be exclusive of any other available remedy Colmer 12/11/2003 8 000315 or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as CITY may deem expedient. In order to entitle the CITY to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. SECTION 9. Warranty of Authorized Signatories. Each of the signatories hereby warrants and represents that he or she is competent and authorized to execute this Agreement on behalf of the party for whom he or she purports to sign. SECTION 10. Assignment. DEVELOPER agrees that CITY, at CITY's sole discretion, may assign this Agreement to the Redevelopment Agency of the City of Moorpark (AGENCY). SECTION 11. Miscellaneous. (a) Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, assigns, legal representatives, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, associations and /or corporations connected with them, including, without limitation, their insurers, sureties and /or attorneys. (b) Attorneys' Fees. In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, or arising out of a breach of this Agreement, or contesting the validity or enforceability of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and costs incurred in such action, suit or other proceeding, including any and all appeals or petitions therefrom. (c) Severability. Should any part, term or provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. Colmcr 12/11/2003 9 000316 (d) Assistance of Counsel. DEVELOPER and CITY acknowledge that: (i) they have been represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel; and (iii) this Agreement is the result of negotiations between the Parties and the advice and assistance of their respective counsel. Each of the Parties has equally participated in the drafting and preparation of this Agreement, and it is the intention of the Parties that the construction or interpretation of this Agreement shall be made without reference to the Party who drafted any portion or particular provision of this Agreement or the relative size and or bargaining power of the Parties. SECTION 12. 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. SECTION 13. Waiver of Protest Rights. DEVELOPER agrees that any fees and payments for this Project 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. SECTION 14. Action at Law; No Remedy Exclusive. The CITY may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the DEVELOPER under this Agreement. No remedy herein conferred upon or reserved by the CITY is intended to be exclusive of any other available remedy or remedies, but each and every such remedy shall be cumulative and shall be in addition to every other remedy given under this Agreement or now or hereafter existing at law, in equity or by statute. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such Colmer 12/11/2003 10 00031'7 right or power, but any such right or power may be exercised from time to time and as often as CITY may deem expedient. In order to entitle the CITY to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. SECTION 15. Notices. All notices and other communications which a party desires or is required to give respecting this Agreement must be in writing addressed to the recipient party at its address set forth beneath its signature to this Agreement and must be given personally (including by commercial messenger or courier) or by First Class United States Mail, postage prepaid. Notices shall be deemed to have been effectively given, if given personally, upon receipt (or upon attempted delivery if receipt is refused), and if mailed, three (3) business days following deposit in the United States Mail. A party may change its address for notices only by a notice given in the foregoing manner. SECTION 16. 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. SECTION 17. Amendments and waivers. No term or provision of this Agreement can be amended or waived, either orally or by a course of conduct, but only by an instrument in writing signed by the party against whom enforcement of such amendment or waiver is sought. SECTION 18. Entire Agreement. This Agreement and the Conditions of Approval for this Project constitute the entire agreement and understanding of the parties with respect to its subject matter and they supersede all prior and contemporaneous agreements and understandings of the parties with respect to that subject matter. SECTION 19. Headings and Attachments. The title of this Agreement and the headings of its sections are for convenience of reference only and are not to be referred to in interpreting or construing this Agreement. However, all attachments and exhibits to this Agreement, as well as the Recitals, are a part of this Agreement. Colmer 12/11/2003 11 000318 SECTION 20. Governing Law and Interpretation. This Agreement is to be governed by and construed in accordance with the laws of the State of California. No term or provision of this Agreement is to be construed against a party by reason of its having drafted the same. This Agreement is made, entered into and executed in Ventura County, California, and any action filed in any court for the interpretation, enforcement or other action arising from any term, covenant or condition herein shall be filed in Ventura County. CITY: DEVELOPER: CITY OF MOORPARK MOONDANCE- MOORPARK, L.P. By Patrick Hunter Mayor Attest: By City Clerk City of Moorpark Address: 799 Moorpark Avenue Moorpark, California 93021 Telephone: (805) 517 -6200 Fax: (805) 529 -8270 Colmer 12/11/2003 By 12 COLMER CONSTRUCTION, G.P. Wayne Colmer, President MOONDANCE- MOORPARK, L.P. 5000 Parkway Calabasas Suite 110 Moorpark, California 93021 Telephone: (805) 444 -3129 000319