HomeMy WebLinkAboutAGENDA REPORT 2005 0302 CC REG ITEM 09CTO:
FROM:
DATE:
ITEM Q• C.
CITY
OF MOORPARK, CALIFORNIA
City Council Meeting
of —4 — 2 - 2 005
ACTION:.e�
MOORPARK CITY COUNCIL
AGENDA REPORT
The Honorable City Council
Steven Kueny, City Manager Oz-
February 24, 2005 (CC Meeting of March 2, 2005)
SUBJECT: Consider Proposed Development Agreement between Shea
Homes Limited Partnership and City of Moorpark
Pertaining to Vesting Tentative Tract No. 5425
BACKGROUND:
Proposed Vesting Tentative Tract Map No. 5425 owned by Shea
Homes, Limited Partnership (Shea Homes) consists of approximately
14.8 acres including the private street of Fremont Street and 102
proposed single family attached and detached units. A City
Council Public Hearing is scheduled for March 2, 2005, to
consider the referenced Tract Map 5425, Residential Planned
Development Permit No. 2003 -02, General Plan Amendment No. 2003-
02, and Zone Change No. 2003 -02, as well as a Mitigated Negative
Declaration and Mitigation Monitoring and Reporting Program.
A City Council Ad Hoc Committee, consisting of Councilmembers
Mikos and Parvin, was appointed to negotiate a proposed
Development Agreement with Shea Homes. The Ad Hoc Committee most
recently met with Shea Homes' representatives on February 22,
2005, and is recommending that the Development Agreement be
forwarded to the Planning Commission for a public hearing at its
regular March 2005 meeting and set for a Council Public Hearing
on April 6, 2005.
DISCUSSION:
The proposed Development Agreement as recommended by the Ad Hoc
Committee and staff is attached. The agreement is shown in
legislative format from the approved Development Agreement
between the City and Moorpark 150, LLC (SunCal). This is done to
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Shea Homes Development Agreement
Agenda Report
Page 2
February 24, 2005
illustrate the changes since the City's last Development
Agreement.
Sections 6. and 7. list the Agreements by the Developer (Shea
Homes) and City, respectively. Fees in Sections 6.3, 6.4 and
6.10 have been updated by changes in the cited index. The park
fee in Section 6.7 has been adjusted to reflect the different
land values in the Shea Homes project.
Per Section 6.9, Shea Homes will provide twenty (20) affordable
housing units in this project. This is more than the minimum 15
percent (15 %) required under redevelopment law. The affordable
units are proposed as follows:
1. Nine (9) for low income households (80% of median income)
2. Six (6) for very low income households (50% of median
income)
3. Five (5) for moderate income households (110% of median
income)
Shea Homes has proposed using its smallest proposed model
(approximately 1,600 square feet) to meet this requirement rather
than constructing a smaller unit. This model is considered a
single family attached unit, commonly referred to as a duplex
unit. In prior projects, the allowed size of the units has
generally ranged from about 1,050 to 1,250 square feet. The
units in this project, however, are all three bedroom units, but
the Ad Hoc Committee and staff support this proposal because of
the relatively large size of the units compared to other approved
affordable units.
The affordable housing information contained in the draft,
proposed Development Agreement attached to this report will be
updated prior to Planning Commission consideration to reflect
current income and house sale prices and to include a table for
"Moderate Income" as well as the timing on providing the
affordable units. The county median annual income has increased
from $74,700 to $80,600 for a family of 4 since approval of the
SunCal Development Agreement. HUD had not adjusted the county
median income information for two years.
In addition to the inclusion of 5 percent (5 %) of the project
units for moderate income households added to the combined 15
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Shea Homes Development Agreement
Agenda Report
Page 3
February 24, 2005
percent (15 %) of total project units as affordable to low and
very low income households, two other affordable housing
provisions have been included in the proposed Development
Agreement. The first item is the inclusion of a Purchase and
Sale Agreement (for the 20 affordable units) as an attachment to
the Development Agreement, as well as including additional
language pertaining to affordable housing in the Development
Agreement. This is in lieu of a requirement for a separate
affordable housing plan and agreement to be approved at a later
date.
The Purchase and Sale Agreement has been used for two prior
developments to effectuate the sale of units from the developer
to the City (or qualified First Time Home Buyer) at an affordable
price. The Purchase and Sale Agreement for Tract 5307
(Moondance- Moorpark /Colmer), in legislative format, is attached
to the proposed Development Agreement. Language in both the
Development Agreement and Purchase and Sale Agreement will
provide for an increase (decrease) in the sale price from the
developer to the City to reflect future increases (decreases) in
median income.
The second new provision will be first right of refusal at market
rate for up to eight additional units to be offered to the City
for purchase prior to the general public. This would require the
City to include any of these units in its affordable housing
program for moderate income first time buyers.
STAFF RECOMMENDATION:
The City Council Ad Hoc Committee and staff recommend referral of
proposed Development Agreement to the Planning Commission and the
setting of the City Council public hearing for April 6, 2005.
SK:db
Attachments:
• Proposed Development Agreement by and between the City of
Moorpark and Shea Homes
• Proposed Purchase and Sale Agreement
S: \City Manager \Everyone \ccagenda \Shea Homes Development Agr Agenda Rpt 0224 2005.doc
000146
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
MCGR-P F�� 11
000147
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into on 4idly 9, "GrIz, by and between the CITY OF MOORPARK,
a municipal corporation, (referred to hereinafter as "City ") and
4—r T, r r r r + ,a r a ' l ' t r -, t
:- z�r�c-� 'zr�c-�c -�- �� n�a��� -- mecca —.� � u�. y � � � y'— �rpc�i�� , the owner of
real property within the City of Moorpark generally referred to as
Vesting Tentative Tract Map 5425-5-1-3- (referred to hereinafter
....................
individually as "Developer "). City and Developer are referred to
hereinafter individually as "Party" and collectively as "Parties."
In consideration of the mutual covenants and agreements contained
in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of which
is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code Section 65864 et seq. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within its boundaries for the
development of such property in order to establish
certainty in the development process.
1.2. Prior to approval of this Agreement, but after the
approval of the Mitigated Negative Declaration (MND),
Mitigation Measures, and Mitigation Monitoring and
Reporting Program ( "the MMRP") for the Project
Approvals as defined in subsection 1.3 of this
Agreement, the City Council of City ( "the City
Council ") approved General Plan Amendment No. 98-
4�2.003 -02 ("GPA 98— X2003 -02 "), for approximately 8
- .......
acres of land within the City ( "the Property "), as more
specifically described in Exhibit "A" attached hereto
and incorporated herein, and changed the zoning of the
Property pursuant to Zone Change No. 44-94-2003-02 ("ZC
48 ;'.2003 -02").
1.3. GPA 2003__02 8 =s, ZC 4 - 2003 -02, Vesting Tentative
Tract Map 5425�3� -9 (Tract 5425S] - -&) and Residential
Planned Development Permit No. 2003 - 024 -8-2 (RPD 2003-
02--9 [collectively "the Project Approvals " -
Shea Homes Dev Agr 0222 2005.doc
-2-
individually "a Project Approval "] provide for the
development of the Property and the construction of
certain off -site improvements in connection therewith
( "the Project ") .
1.4. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in
accordance with the Project Approvals and this
Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its
governmental and proprietary powers to the extent
specified in this Agreement.
1.5. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. Developer anticipates developing
the Property over a minimum of three (3) years. In
consideration thereof, Developer agrees to waive its
rights to legally challenge the limitations and
conditions imposed upon the development of the Property
pursuant to the Project Approvals and this Agreement
and to provide the public benefits and improvements
specified in this Agreement.
1.6. City and Developer acknowledge and agree that the
consideration that is to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the General Plan of City,
as amended by GPA 98- 12003 -02.
1.7. On ���b X88, 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 --9 � - ' the City Council commenced a duly
noticed public hearing on this Agreement, and at the
conclusion of the hearing on - -eme
approved the Agreement by Ordinance No. 2-9-9-- (11 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
Shea Homes Dev Agr 0222 2005.doc —3 —
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M
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms "City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, except
that the term "Developer" shall not include the purchaser or
transferee of any lot within the Project that has been fully
developed in accordance with the Project Approvals and this
Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which a Developer has a
legal interest is, and shall be, conclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
any of Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
transferred subsequent to the operative date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
delivered to City a written assumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses. The permitted and
permitted uses of the Property shall
those that are allowed by the Project
this Agreement.
Shea Homes Dev Agr 0222 2005.doc
conditionally
be limited to
Approvals and
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5.
4.2. Development Standards. All design and development
standards, including but not limited to density or
intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are
set forth in the Project Approvals and this Agreement.
4.3. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation and the Uniform
Administrative Code in effect at the time the plan
check or permit is approved and to any federal or state
building requirements that are then in effect
(collectively "the Building Codes ").
4.4
Reservations and Dedications. All reservations and
purposes that are
forth in the Project
dedications of land for public
applicable to the Property are set
Approvals and this Agreement.
vesting of Development Rights.
5.1.
Shea Homes Dev Agr 0222 2005.doc
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 subsection, 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
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000151
accordance with the Project Approvals and this
Agreement. Nothing in this subsection shall be
construed to limit City's right to insure that
Developer timely provides all infrastructure required
by the Project Approvals, Subsequent Approvals, and
this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of
the Project Approvals, whether adopted or approved by
the City Council or through the initiative or
referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to
the amendment.
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g.
site plans, architectural plans.and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
Shea Homes Dev Agr 0222 2005.doc
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal Code and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City (collectively "City Laws "),
except City Laws that:
(a) change any permitted or conditionally permitted
uses of the Property from what is allowed by the
Project Approvals;
(b) limit or reduce the density or intensity of the
Project, or any part thereof, or otherwise require any
N.
000152
reduction in the number of proposed buildings or other
improvements from what is allowed by the Project
Approvals.
(c) limit or control the rate, timing, phasing or
sequencing of the approval, development or construction
of all or any part of the Project in any manner,
provided that all infrastructure required by the
Project Approvals to serve the portion of the Property
covered by the Subsequent Approval is in place or is
scheduled to be in place prior to completion of
construction;
(d) are not uniformly applied on a City -wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations;
(e) control residential rents;
(f) prohibit or regulate development on slopes with
grades greater than 20 percent, including without
limitation Moorpark Municipal Code Chapter 17.38 or any
successor thereto, within the Property; or
(g) modify the land use from what is permitted by the
City's General Plan Land Use Element at the operative
date of this Agreement or that prohibits or restricts
the establishment or expansion of urban services
including but not limited to community sewer systems to
the Project.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire ten (10) years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the provisions of Government Code
Section 66452.6(a) or the fact that the final map may
be filed in phases. Developer hereby waives any right
that it may have under the Subdivision Map Act,
Government Code Section 66410 et seq., or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
Shea Homes Dev Agr 0222 2005.doc
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000153
The term of any Subsequent Approval, except a tentative
map or subdivision improvement or other agreements
relating to the Project, shall be one year; provided
that the term may be extended by the decision maker for
two (2) additional one (1) year periods upon
application of the Developer holding the Subsequent
Approval filed with City's Department of Community
Development prior to the expiration of that Approval.
Each such Subsequent Approval shall be deemed
inaugurated, and no extension shall be necessary, if a
building permit was issued and the foundation received
final inspection by City's Building Inspector prior to
the expiration of that Approval.
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly, throughout the term of
this Agreement, any Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, Developer shall have the right, at its
election and without risk to or waiver of any right
that is vested in it pursuant to this section, to apply
to City for modifications to Project Approvals and
Subsequent Approvals. The approval or conditional
approval of any such modification shall not require an
amendment to this Agreement, provided that, in addition
to any other findings that may be required in order to
approve or conditionally approve the modification, a
finding is made that the modification is consistent
with this Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from Developer if all
infrastructure required by the Project Approvals,
Subsequent Approvals, and this Agreement to serve the
portion of the Property covered by the building permit
is in place or is scheduled to be in place prior to
completion of construction and all of the other
relevant provisions of the Project Approvals,
Subsequent Approvals and this Agreement have been
satisfied. Consistent with subsection 5.1 of this
Agreement, in no event shall building permits be
Shea Homes Dev Agr 0222 2005.doc
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000154
allocated on any annual numerical basis or on any
arbitrary allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of a
final inspection or certificate of occupancy, provided
that the moratorium is adopted or imposed (i) on a
City -wide basis to all substantially similar types of
development projects and properties with similar land
use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
6. Developer Agreements.
6.1. Developer shall comply with (i) this Agreement, (ii)
the Project Approvals, (iii) all Subsequent Approvals
for which it was the applicant or a successor in
interest to the applicant and (iv) the MMRP of the MND
and any subsequent or supplemental environmental
actions.
6.2. All lands and interests in land dedicated to City shall
be free and clear of liens and encumbrances other than
easements or restrictions that do not preclude or
interfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.3. As a condition of the issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City a
development fee as described herein (the "Development
Fee "). The Development Fee may be expended by City in
its sole and unfettered discretion. On the operative
date of this Agreement, the amount of the Development
Fee shall be Eight Thousand Eight Hundred N net,,Five
�� ed—t i t ire -- Dollars ($8,896- J- .00) per
residential unit and
went y_ E gilt 71011 ars ($40 , 028. 00 ) per gross acre of
-- __ — ._. e
institutional land on which the use is located. The fee
shall be adjusted annually commencing one (1) year
after the first residential building permit is issued
Shea Homes Dev Agr 0222 2005.doc
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000155
within Tract 542 - - --
58 by any increase in the Consumer
.............--
Price Index (CPI) until all fees have been paid. The
CPI increase shall be determined by using the
information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers
within the Los Angeles /Anaheim /Riverside metropolitan
area during the prior year. The calculation shall be
made using the month which is four (4) months prior to
the month in which the first residential building
permit is issued within Tract 5425 (e.g., if the
permit issuance occurs in October, then the month of
June is used to calculate the increase). In the event
there is a decrease in the referenced Index for any
annual indexing, the Development Fee shall remain at
its then current amount until such time as the next
subsequent annual indexing which results in an
increase.
6.4. As a condition of the issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City a
traffic mitigation fee as described herein ( "Citywide
Traffic Fee "). The Citywide Traffic Fee may be
expended by City in its sole and unfettered discretion.
On the operative date of this Agreement, the amount of
the Citywide Traffic Fee shall bes
Ht- t= e3d -xt ': i ous and
Seventy -'ive Dollars ($5,075.00) per residential unit,
and Twenty _Two Thousand,
T T
FI ran rc� �h�Y qh_t. Dollars ($ -2-4- 99 -S 72, S 30.00) per
acre of institutional land on which the institutional
use is located. Commencing on January 1, 2006, and
annually thereafter, both categories of the Citywide
Traffic Fee shall be increased to reflect the change in
the State Highway Bid Price Index for the twelve (12)
month period that is reported in the latest issue of
the Engineering News Record that is available on
December 31 of the preceding year ( "annual indexing ").
In the event there is a decrease in the referenced
Index for any annual indexing, the Citywide Traffic Fee
shall remain at its then current amount until such time
as the next subsequent annual indexing which results in
an increase.
6.5
Shea Homes Dev Agr 0222 2005.doc
As a condition of
each residential
boundaries of the
community service
issuance of a building
or institutional use
Property, Developer shall
s fee as described herein
-10-
permit for
within the
pay City a
(Community
000156
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, Two Hundred Thirty -Three Dollars ($2,233.00)
per residential unit, and Seven Thousand Seventy
Dollars ($7,070.00) per gross acre of institutional
land on which the institutional use is located.
Commencing on January 1, 20084, and annually
thereafter, the Community Services Fee shall be
adjusted by any increase in the Consumer Price Index
(CPI) until all Community Services Fees have been paid.
The CPI increase shall be determined by using the
information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers
within the Los Angeles /Anaheim /Riverside metropolitan
area during the prior year. The calculation shall be
made using the month of August over the prior month of
August. In the event there is a decrease in the CPI for
any annual indexing, the Community Services Fee shall
remain at its then current amount until such time as
the next subsequent annual indexing which results in an
increase.
6.6. On the operative date of this Agreement, Developer
shall pay all outstanding City processing costs related
to preparation of this Agreement, Project Approvals,
and MND.
6.7. Prior to the issuance of the building permit for each
residential dwelling unit within the Property,
Developer shall pay a fee in lieu of the dedication of
parkland and related improvements (Park Fee). On the
operative date of this Agreement, the amount of the
Park Fee shall be Eight-. Thousand Two 111- ed t7 ort y
Dollars ($8,240.00) T�� euSan
9�} —for each residential dwelling unit and
Fifty Cents ($.50) per square foot of each building
used for institutional purposes within the Property.
The fee shall be adjusted annually commencing one (1)
year after the first residential building permit is
issued within Tract 5_4_259 by any increase in the
Consumer Price Index (CPI) until all fees have been
paid. The CPI increase shall be determined by using
the information provided by the U.S. Department of
Labor, Bureau of Labor Statistics, for all urban
consumers within the Los Angeles /Anaheim /Riverside
metropolitan area during the prior year. The
calculation shall be made using the month which is four
Shea Homes Dev Agr 0222 2005.doc
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00015'7
(4) months prior to the month in which the first
residential building permit is issued within Tract
5425-5-1-3-G (e.g., if the permit issuance occurs in
October, then the month of June is used to calculate
the increase). In the event there is a decrease in the
referenced Index for any annual indexing, the Park Fee
shall remain at its then current amount until such time
as the next subsequent annual indexing which results in
an increase.
Developer agrees that the above - described payments
shall be deemed to satisfy the parkland dedication
requirement set forth at California Government Code
Section 66477 et seq. for the Property.
6.8. Provided that prior to recordation of the first final
map for Tract 542538 or March 31, 2006 -, whichever is
later, Ventura County Waterworks District No. 1 or any
successor entity confirms that it has sufficient
recycled water to serve the public and community owned
landscaped areas within Tract 54258, then Developer
shall construct appropriately sized water lines,
pumping facilities, and storage facilities for recycled
water consistent with the requirements of the City,
Waterworks District No. 1 and Calleguas Water District.
Said lines shall be installed prior to the final cap
being placed on all streets. Developer shall provide
service including payment of any connection and meter
charges and shall use recycled water for medians and
parkways for all public streets, and any other public
and commonly owned landscaping and recreation areas.
The amount of recycled water needed and areas to be
irrigated by recycled water shall be determined by City
at its sole discretion. The recycled water line(s)
shall be installed for each City approved phase of
development and the recycled water shall be in use
prior to the first occupancy approval for each City
approved phase of development if such recycled water is
available within one -half mile of the Property.
Developer shall install dual water meters and services
for all locations determined necessary by City at its
sole discretion to insure that both potable and
recycled water are available where restroom and
drinking fountains are planned.
1 ;
Shea Homes Dev Agr 0222 2005.doc
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000158
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s,bseeti en- 9 shall be ineliidedl in the
,easements Ne f sa -I s u r -z a
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,h.e ETr'�Le-e
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6. 5. Developer shall provide fi=re- -nine Ilire e (43)
bedroom and two bath
de!-:aelheel attached units with a
minimum of 1,600-1�, square feet- tob`esold to buyers
who meet the criteria for low income (80 percent or
less of median income) ; and feuia (4) six (6) f-&�: three
.. . .......
(43) bedroom and two (2) bath . .,
twe single family dew
attached with a minimum of 1, 60081 square
feet to be sold to buyers who meet -_ the criteria for
very low income (50 percent or less of median income);
and five (5) three (3) bedroom and two (2) 'bat"n
siilqle
family attached units with a minimum of -...,600 square
T__ettobe —sold to buyers who --t—he
�
. ..... .. ... .... . ... . ........ .. . _L ..a for
. .. ....... ..
moderate income T
(110 Percent or less of n e C-1 ia r i
. ......... .... .. . ... ----- — — - ------ - - - - - - — - - -- - -- - - -- - - . . .......... ....... ... ........... . -
-income) . All single family de-t-ae at'-ached units
shall include a standard size two-car garage with
roll-up garage door and a minimum driveway length of
eighteen (18) feet measured from the back of sidewalk,
meet minimum setback requirements of
Shea Homes Dev Agr 0222 2005.doc -13-
000159
2,.003302, include concrete roof tiles, and other
amenities typically found in moderate priced housing
in the City (e.g., air conditioning /central heating,
washer /dryer hookups, garbage disposal, built -in
dishwasher, concrete driveway, automatic garage door
opener) . Tile a f oremen t L oned Lwernt.y (2 0 ,) ur.l r_ r. s area
- _- ..........
iZe:'t -'� vre1y re-- -erred t:7 as t. he aff d�-,i' 1 e It .'i,- n
Unil t S or aff0rda b 1.e url is
��. p_ try �pII-
a�e- e e n s de l dt li
�h- e-- � =a-t -i c� P�e�e- a��-�e n•�� -sue- -r 1- ;��`- -z��e� -- Ica- �= -sz-r�
yen -s be -�
t,h °rr —_n
------ --i`,, e-
mt ..Ltae-
t- �- e-s-�� �- «�t�e- s- �e�� --s �g 1-e-- fz=rm '.. - de✓`- �- Tr... -� �-�-�
a e r-
g,�- �- eii- s— U-�—��
_ -a - . ;wa- t-t �n
3 > -el4p� -see
Shea Homes Dev Agr 0222 2005.doc
-14-
000160
h i- +1
t{&--- -e= c�r"s-ra-ete{� - =iE as cz 2
n 4- --t .- r-eement�s
Cc 2e -P1a end -Use Ik e- fret °nom
ether-- 1c�I1� —tl�e e3%���se� °rr}c GCE)
Developer further agrees that it has the obligation to
provide the required number of <f vrdaable housing
units as specified above regardless of the cost to
acquire or construct said housing units. Developer
further agrees that City has no obligation to use
eminent domain proceedings to acquire any of the
required housing units and that this subsection 6.11
is specifically exempt from the requirements of
subsection 7.2 of this Agreement.
Prior to recordation of the first final Tract Map for
this Project, the parties agree to execute a Purchase
--- -._... _ ..
and Sale Agreement which further sets fort the
Developer's obligations of this subsSect on ' 9. --
- -- - _..... - - - -- ......__. .. .. ..... _ ....__
and City's onli.ga_ ions per subsect:.ion 7-.77. The
- - --
�urchase and Sale Agreement shall be 'Ln the form,
attached hereto as Exhibit "C ". The Developer agrees
..... ... -. __.. - .- _
to pay all City costs for preparation of the Ptrc"' se
_ --
and Sale Agreement and its implementation and
administration through the sale and occupancy of L;3e
.... - - -- - - - - -- ...._.... - -. - - - --
last. of the twenty (20) affordable hc. ;z ink un_l._s.
Tie Developer_- agrees that the intent of this
�subsection 6.1 -1-9. and the P ... -- - - - - --
is to provide the twenty (20) affordable hour ---q units
consistent with applicable State and Federa.i. laws and.
- - -- - -- - -- -
that said units remain affordable for the longest
feasible time. Developer further agrees that, the City
-- - -- -- - - - - -- - - -- - - - --
at its sole discretion will make all_ decisions
_ ._ ........ - - - -. ....._.. _.....
Oertaining to the selection of eligible First T i. me
Home Buyers and all requirements placed on the stile of
the twenty (20) affordable housing nits to sold
_..
Buyers_ The difference between the initial - urchase-
price by a qualified Buyer and market value shall be
retained by the City as a second deed of trust.
The actual
- -- initial purchase -- - e d price by a qual f
buyer, - market value buyer _eligib lty, resale
- - -- -
...
restrictions equity
_ ............... ...-- --- ._......... _......._._.— —share and _second trust deed
provisions, and any - other items determir_ed necessary
by the City will be approved by the City ou c?_1 in
Shea Homes Dev Agr 0222 2005.doc _15—
000161
i s sole and unfettered discretion prior �o or at su .
t Te as qualified buyers are selected to purchase the
affordable nousing
unfettered iseretien
shy
— approve an—Af f erdable
that prev ides
'- -a71 e eeged
ate€ - t s-
previded e em s terms 44-h—this
Ago
-a-e - maw— a "ncea-
zze3rcab —e " tne_. -:
'
r �-t ---- 'rha-�,
1 s - �
r
L7"C r
'
fi" —e-f-
1
-
�t7rit� -2_ _..- .- .- .rSI -TY� {.:,'iT7. -n
e er�Y
I
=,'-C:. L.,1lTir�Ss —CAS i neeessary
by r.•
�,, L�
t
p epawatien and n e v i eso aL—•'4—
Three i( - of the —le 3- ineeme :ini-t-�r�-hri
and—
G, t lr... "s r
a. }a
Shea Homes Dev ar 0222 2005.doc
-16-
0001 62
Shea Homes Dev Agr 0222 2005.doc
be tin",dl a -ires e�i^i
All units shall meet the criteria of all applicable
State laws to qualify as newly affordable to aioderat.e
income, low income and very low income persons (in the
.111111.111, quantity as specified in this Agreement) to satisfy a
portion of the City's RHNA obligation and � n
-
a shy- the Moorpark Rede�,elorment
Agency's affordable housing goals. None of the
affordable units required by this Agreement shall
duplicate or substitute for the affordable housing
requirement of any other developer or development
project. All subsequent approvals required of City
under this subsection 6.9-1 shall be made at City's
sole discretion. If any conflict exists between this
Agreement and any- " - -the Purchase and
Sale _ Agreementer�d gr . -or the
conditions of approval for Tract Map No.a -525
and /or RPD No. 2003 -0295 2, then tie ozovlsion
._. .... _
providing the City the most favorable 1ar7c�uagP_..._�or
assisting eligible First Time Home Buyers w,-1c, meet t_-e
q-Jalification of moderate, low ancl low -
A T "' shall prevail.
J ,J
A-14
-e s't _
. I
s ng- cedes —�
ecessa y as , ete �-b, EC y -n- .eo�e diet =ten
-e e : _t-a-rz�
f e 7F a t- Yew -g ee p ter rtr -err nom- :: - t
��i •2�5.T "TSS.�'1. �-- v"�T�CV_"Ci. ^. � i � � ra i ,� t� -i ..
r
rt- �3
000163
".- ccrbd�/� . + [� +�- ��1},
LYLc1r - i��r.-r rr-effie:Fe —an -Ti' 7.'... �.,,1TLII'{i- 2Cdr�CZ- 37Q2" =. wJ'..""_" ,._.'.T- .
I.� a -L e'1 =TTI,l, j — __Tti"iZ -e-s e Id 17. L- t_��..
Z
r _
- r �
eenerete tile reef if all- ell-he-
in - ate — even-,
sh-a e _. _- s h i nq l e-reef be appreved_
........ ---- r, r + v , , a '
....__._
HJ a f a n �F ti2T =— czb s e vl ±en
wee % —z were
--$d -te e f
n �-1.,-,�, t el � -e— meet =�� — Developer
agrees to provide the same home warranties associated
with other units in the same project as the
affordable units- for the
maximum time required by State law,t}
,fir> but in no event less than ten (10 ) years.
Developer agrees that all such warranties shall inure
to the benefit of and be enforceable by the ultimate
occupants of the moderate income, low income and very
low income units, and that all warranties by
subcontractors and suppliers shall inure to the
benefit of and be enforceable by such occupants. The
qualified buyer (or City in lieu of a qualified buyer
at its sole discretion) shall have the same choices of
finish options as purchasers of other units in the
project and final walk - through approval of condition
of unit before close of sale. Any options provided to
buyers of units shall be provided to buyer(s) of the
required units including but not limited to color and
style choices for carpeting and other floor coverings.
Flooring selections shall be made within 10 days of
Developer's request for selection.
In the event the monthly HOA fees exceed $100.00,
Developer shall deposit $120.00 for each dollar or
portion thereof of the monthly HOA fees that are in
excess of $100.00 into a City administered trust to
assist with future HOA fees for each affected
affordable unit.
The Initial Purchase Price for the low - income buyers
shall not exceed affordable housing cost, as defined
in Sec. 50052.5(b) (2) of California Health and Safety
Code. For a household of 4, the current monthly
"affordable housing cost" would be 30% times 700 of
Shea Homes Dev Agr 0222 2005.doc — 18 —
000164
the current median income for a household of
4 in Ventura County, divided by 12. This monthly
amount includes the components identified in Section
6920 of Title 25 of the California Code of Regulations
shown below. (See Section 50052.5(c) of the Health
and Safety Code.) The Initial Purchase Price for a
low income household of 4 or fewer would be $158,000
under current market conditions, based upon the
following assumptions:
Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase
Price
$5g;- -x}08
Down Payment
5% of estimated
market value
$ 4—OC34
Loan Amount
Initial Purchase
Price less down
payment
$1"T4&-o-4
Interest Rate
6.0%
Property Tax
1.25% of Initial
Purchase Price
$172 /mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186 /mo.
The Initial Purchase Price for a low - income household
of five or more would be based on the affordable
housing cost for the actual household size. Under
current market conditions, that price would be
$14-9, 8 -9 -G for a household of five, $4- 5 _ � for a
household of six, and $2 - -G, 8 for a household of
seven.
The assumptions associated with the above purchase
price figures for low income households include a 5%
down payment, based on estimated market value of
$ mortgage interest rate of 6 %, no mortgage
insurance, property tax rate of 1.25 %, based on
Initial Purchase Price, homeowners' association dues
of $50 per month, fire insurance of $30 per month,
maintenance costs of $30 per month, and utilities of
$186 per month for a household of 4, assuming a 3
bedroom unit, and utilities of $213 per month for
Shea Homes Dev Agr 0222 2005.doc
-19-
0001.6$
households of 5, 6 and 7 persons, assuming a 4 bedroom
unit.
The Initial Purchase Price for the very low - income buyers
shall not exceed affordable housing cost, as defined in
Section 50052.5(b) (2) of California Health and Safety Code.
For a household of 4, the current monthly "affordable housing
cost" would be 30% times 50% of $4,788 the current median
income for a household of 4 in Ventura County, divided by 12.
This monthly amount includes the components identified in
Section 6920 of Title 25 of the California Code of Regulations
shown below. (See Section 50052.5(c) of the Health and Safety
Code.) The Initial Purchase Price for a very low income
household of 4 or fewer would be $- 95-;44-G4 under current market
conditions, based upon the following assumptions:
Very Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase
Price
Down Payment
3% of estimated
market value
$4-,444
Loan Amount
Initial Purchase
Price less down
payment
$8 4
Interest Rate
6.0%
Property Tax
1.25% of Initial
Purchase Price
$102 /mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186 /mo.
That Initial Purchase Price for a very low- income
household of five or more would be based on the
affordable housing cost for the actual household size.
Under current market conditions, the Initial Purchase
Price would be for a household of five,
$7; 9Ett� for a household of six, and for a
household of seven.
The assumptions associated with the above purchase
price figures for very low income households include a
3% down payment, based on estimated market value of
$ ^, mortgage interest rate of 6 %, no mortgage
insurance, property tax rate of 1.25 %, based on
Shea Homes Dev Agr 0222 2005.doc —2 0 —
000166
Initial Purchase Price, homeowners' association dues
of $50 per month, fire insurance of $30 per month,
maintenance costs of $30 per month, and utilities of
$186 per month for a household of 4, assuming a 3
bedroom unit, and utilities of $213 per month for
households of 5, 6 and 7 persons, assuming a 4 bedroom
unit.
Moderate Income Buyer
Household of Four
- - - -- (To be Provided)
Developer acknowledges that changes in market
conditions may result in changes to the Initial
Purchase Price, down payment amounts, mortgage
interest rates, and other factors for -le —the
Tyro ezate, low income and very low income buyers.
Furthermore, if "affordable housing cost ", as defined
in Section 50052.5 of California Health and Safety
Code, should change in the future, the above
guidelines will be modified. The ieydleus
i i l rc �� r— czrr� —�7 @$ r°�� � E T�-c -� ID Ll r c h a s e
and Sale Agreement shall address this potential
change.
In the event the City, at its sole discretion
purchases one or more of the units from Developer in
lieu of a qualified buyer, the Initial Purchase Price
shall be based on a household size of 4 persons and
consistent with all requirements of this subsection
6.941-17. Developer agrees that prior to and upon the
sale of a required unit to a qualified buyer (or City
in lieu of a qualified buyer as determined by City at
its sole discretion), 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 in lieu of
a qualified buyer as determined by City at its sole
discretion) , City, not Developer, shall have sole
responsibility for approving any subsequent sale of
that housing unit.
Developer shall pay closing costs for each unit, not
to exceed $6,000. Beginning March 1, 248 - X2007, and on
March 1St for each of fifteen subsequent years, the
Shea Homes Dev Agr 0222 2005.doc
-21-
00016'7
maximum $6,000 to be paid for closing costs shall be
increased annually by any percentage increase in the
Consumer Price Index (CPI) for All Urban Consumers for
Los Angeles /Orange /Riverside metropolitan area during
the prior year. The calculation shall be made using
the month of December over the prior month of
December. In the event there is a decrease in the CPI
for any annual indexing, the amount due shall remain
at its then current amount until such time as the next
subsequent annual indexing which results in an
increase. The referenced Developer funded closing
costs shall be for the benefit of qualified buyers (or
City in lieu of qualified buyers as determined by City
at its sole discretion for one or more of the required
units) in their acquisition of a unit from Developer
not Developer's acquisition of a unit from one or more
third parties. The Developer's escrow cost shall not
exceed the then applicable maximum amount per unit
regardless of the number of escrows that may be opened
on a specific unit.
No ess than thirty (30) days prior
for sale to the genera to IC-he offering
- - - - - --
l public of lots
and with. Model.. as approved by RPD
— - -- �' _._ ... _.. ..... -------
.2-0030 2.-, with approximately square feet (units)
,- -- -- — --
Developer shall provide City with notice of said
mended sale. Said notice shall include the proposed.
:gale price_ Within thirty (30) days of receiving said
...... __ ........-
notice, may purchase one or more of the above-
-- referenced units and enter into escrow at the stated
pri --e or such other price as may be negotiated by the
_. _ _
Parties. Developer warrants that said price ;mall be
_ ..._ _. — - - - -.- - - - - -- --
no higher than what would be offered to a bona fide
- -- - - - --
qualified purchaser from the general public. City
--l-
warrants that if it exercises its right to purchase,
........... t will . .. - -- - ... - -. ....
reselling it to a qualified First Time Home Buyer with
1. - .....— -- - —
income not exceeding moderate income. Upo_ -, nut -ual 11 _ g
agreement of the parties said First T me Ho:iIe L3uyer
....... t _ ...... __. _. - - -. ........ ..... ..
may be substituted for City with the requ--re nezt that.
- _ -.
the City will work with. buyer to finan ce the puc ase
o the unit ets
g c Buyer all the same new home
warranties as t. e purchase or any rrkar}ce� aI-
-. -.- _
r_he - 'roect. -
Developer agrees that the Mitigation Measures
included in the City Council approved MND and MMRP, or
subsequent environmental clearance document approved by
Shea Homes Dev Agr 0222 2005.doc
-22-
the Council, set forth the mitigation requirements for
air quality impacts. Developer agrees to pay to City an
air quality mitigation fee, as described herein (Air
Quality Fee), in satisfaction of the Transportation
Demand Management Fund mitigation requirement for the
Project. The Air Quality Fee may be expended by City
in its sole discretion for reduction of regional air
pollution emissions and to mitigate residual Project
air quality impacts.
At the time the Fee is due, City may at its sole
discretion require Developer to purchase equipment,
vehicles, or other items, contract and pay for
services, or make improvements for which Developer
shall receive equivalent credit against Air Quality Fee
payments or refund of previous payments.
The Air Quality Fee shall be One mhou.sand, Six :Huyidred,
Thu_rt_y -:S -x _ Gne Theidgand,
Dollars ($1,636.00_!�8-;.99) per residential unit to be
paid prior to the issuance of each building permit for
the first residential unit in Tract 5130. Commencing on
March 1, 2007, and annually thereafter the Air Quality
Fee shall be adjusted by any increase in the Consumer
Price Index (CPI) until all fees have been paid. The
CPI increase shall be determined by using the
information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers
within the Los Angeles /Anaheim /Riverside metropolitan
area during the prior year. The calculation shall be
made using the month of December over the prior month
of December. In the event there is a decrease in the
CPI for any annual indexing, the fee shall remain at
its then current amount until such time as the next
subsequent annual indexing which results in an
increase.
For institutional uses, the Air Quality Fee shall be
calculated by the Director of Community Development
consistent with the then applicable Ventura County Air
Quality Management District URBEMIS Model prior to the
first occupancy approval for each institutional use.
6. Developer hereby waives any right that it may have
under California Government Code Section 65915 et.
seq., or any successor thereto, or any other provision
of Federal, State, or City laws or regulations for
application or use of any density bonus that would
Shea Homes Dev Agr 0222 2005.doc —23—
000169
increase the number of dwelling units approved to be
constructed on the Property.
6.v2. Developer agrees to cast affirmative ballots for the
formation of one or more assessment districts and
levying of assessments, for the maintenance of parkway
and median landscaping, street lighting, including but
not limited to all water and electricity costs, and if
requested by the City Council, parks for the provision
of special benefits conferred by same upon properties
within the Project. Developer further agrees to form
one or more property owner associations and to obligate
said associations to provide for maintenance of parkway
and median landscaping, street lighting, and if
requested by the City Council, parks in the event the
aforementioned assessment district is dissolved or
altered in any way or assessments are reduced or
limited in any way by a ballot election of property
owners, or if the assessment district is invalidated by
court action. Prior to recordation of the first final
map for the Property, if required by City at its sole
discretion, Developer shall also form one or more
property owner associations to assume ownership and
maintenance of open space land, trails, storm water
detention and /or debris basins and related drainage
facilities, landscaping, and other amenities, and to
comply with the National Pollutant Discharge
Elimination System (NPDES) requirements of the Project.
The obligation of said property owner associations
shall be more specifically defined in the conditions of
approval of Tract 542551�8 and RPD 2003- 024-8-21.
6. -513. In addition to fees specifically mentioned in this
Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the
rate and amount in effect at the time the fee is
required to be paid. Said fees include but are not
limited to Library Facilities Fees, Police Facilities
Fees, Fire Facilities Fees, drainage, entitlement
processing fees, and plan check and permit fees for
buildings and public improvements. Developer further
agrees that unless specifically exempted by this
Agreement, it is subject to all fees imposed by City at
the operative date of this Agreement and such future
fees imposed as determined by City in its sole
discretion so long as said fee is imposed on similarly
situated properties.
Shea Homes Dev Agr 0222 2005.doc
-24-
0001'70
6. - --? Developer shall pay the Los Angeles Avenue Area of
Contribution (AOC) fee for each residential lot and
institutional use prior to the issuance of a building
permit for each lot or use. The AOC fee shall be the
dollar amount in effect at the time of issuance of the
building permit for each residential lot and
institutional use.
4 -na1 -Tta� f e, -t, t he
qa t _E- Y)Y
VjE:ct su s r 1 . t...... E i - c1.= {'_, cl-l. fy,? J
6. 1 5. The street improvements for Ner-t-!-.�. i �1 -
streets scheduled for dedication to the City shall be
_... -- - - -- - -- - -- - - - - - -- ...- -- -
designed and constructed by Developer to provide for a
50 -year life as determined by the City Engineer.
r
e e rL -cn�cz
Read
6.2-&1-6. 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. Developer further agrees
that the fees it has agreed to pay pursuant to
subsections 6. 3- , - - - - -- and. 6. 5, - - - - =' �rr�. ? of this
Agreement are not public improvement fees collected
pursuant to Government Code Section 66006 and statutes
amendatory or supplementary thereto and that for
purposes of Government Code Section 65865(e) and
statutes amendatory or supplementary thereto,v
Developer agrees to comply with Section 15.40.150 of
the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual review
Shea Homes Dev Agr 0222 2005.doc
-25-
00011,711L
of this Agreement and further agrees that the annual
review shall include evaluation of its compliance with
the approved MND and MMRP.
7- - - - - --
s� -- he
CAE -
r3.f_ t ..�14
:e
rt--'-.�e, -'1- f 471- r- �- --He -f
6.? 8. Developer agrees to provide City with cash deposits as
City may require at its sole discretion to pay all
City and related costs for the proceedings and related
services for possible formation of a District as
referenced in subsection 7.6 of this Agreement, which
may be required to be paid prior to formation of a
District, or in the event a District is not formed,
after the commencement of proceedings related thereto.
Said costs may include but are not limited to attorney
fees, engineering fees, City staff costs, and City
overhead expenses of fifteen percent (15 %) on all out
of pocket and professional service costs.
Developer further agrees that City may at its sole
discretion select the bond counsel, underwriter,
financial advisor and any other professional service
provider City deems necessary to process the possible
formation of a District.
6.2 -14 Developer agrees that any election to
by eminent domain shall be at City's
and only after compliance with all
procedures including but not limited
proposed resolution of necessity.
Shea Homes Dev Agr 0222 2005.doc
-26-
acquire property
sole discretion,
legally required
to a hearing on a
OOOJL 72
7. City Agreements.
7.1. City shall commit reasonable time and resources of City
staff to work with Developer on the expedited and
parallel processing of applications for Subsequent
Approvals for the Project area and shall use overtime
and independent contractors whenever possible.
Developer shall assume any risk related to, and shall
pay the additional costs incurred by City for, the
expedited and parallel processing.
7.2. If requested in writing by Developer and limited to
City's legal authority, City at its sole discretion
shall proceed to acquire, at Developer's sole cost and
expense, easements or fee title to land in which
Developer does not have title or interest in order to
allow construction of public improvements required of
Developer including any land which is outside City's
legal boundaries. The process shall generally follow
Government Code Section 66462.5 et seq. and shall
include the obligation of Developer to enter into an
agreement with City, guaranteed by cash deposits and
other security as the City may require, to pay all City
costs including but not limited to, acquisition of the
interest, attorney fees, appraisal fees, engineering
fees, City staff costs, and City overhead expenses of
fifteen percent (15 %) on all out -of- pocket costs.
7.3. The City Manager is authorized to sign an early grading
agreement on behalf of City to allow rough grading of
the Project prior to City Council approval of a final
subdivision map. Said early grading agreement shall be
consistent with the conditions of approval for Tract
5425-5 -?38 and RPD 2003 -0298 1 and contingent on City
Engineer and Director of Community Development
acceptance of a Performance Bond in a form and amount
satisfactory to them to guarantee implementation of the
erosion control plan and completion of the rough
grading and construction of on -site and off -site
improvements. In the case of failure to comply with
the terms and conditions of the early grading
agreement, the City Council may by resolution declare
the surety forfeited.
7.4. City agrees that whenever possible as determined by
City in its sole discretion to process concurrently all
land use entitlements for the same property so long as
said entitlements are deemed complete.
Shea Homes Dev Agr 0222 2005.doc —2 7 —
0001'73
7.5. City agrees that the Park Fee required under subsection
6.7. of this Agreement meets Developer's obligation for
park land dedication provisions of state law and City
codes.
7.6. City agrees that upon receipt of a landowners' petition
by Developer and Developer's payment of a fee, as
prescribed in California Government Code Section 53318,
as well as payment for costs described in subsection
of this Agreement, City shall commence
proceedings to form a Mello -Roos Community Facilities
District ( "District ") and to incur bonded indebtedness
to finance all or portions of the public facilities,
infrastructure and services that are required by the
Project and that may be provided pursuant to the Mello -
Roos Community Facilities Act of 1982 (the "Act ");
provided, however, the City Council, in its sole and
unfettered discretion, may abandon establishment of the
District upon the conclusion of the public hearing
required by California Government Code Section 53321
and /or deem it unnecessary to incur bonded indebtedness
at the conclusion of the hearing required by California
Government Code Section 53345.
The purpose of any such District may also include fees
for funding public facilities, infrastructure and
services that are required by the Project to the extent
permitted by the Act as determined by bond counsel for
the District's bond indebtedness financing. City may
select and retain bond counsel, engineers,
underwriters, financial advisors and any other
professional service providers it deems necessary at
its sole discretion to conduct proceedings and related
services for possible formation of a District. City
further agrees that, to the extent permitted by the Act
as determined by bond counsel, Developer may be
reimbursed for costs advanced by Developer for
formation and related proceedings.
In the event that a District is formed, the special tax
levied against any residential lot or residence thereon
shall afford the buyer the option to prepay the special
tax in full prior to the close of escrow on the initial
sale of the developed lot by the builder of the
residence.
Shea Homes Dev Agr 0222 2005.doc —2 8 —
000174
7.7. The City agrees to appoint an affordable housing staff
person to oversee the implementation of the affordable
housing requirements for the Property required herein
for the duration such units are required to be
maintained as affordable consistent with the
provisions of subsection 6.14 19 of this Agreement &L-".d
t_h . Piii chase and Sale Agreement. .
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7. City shall facilitate the reimbursement to Developer
of any costs incurred by Developer that may be subject
to partial reimbursement from other developers as a
condition of approval of a tract map development
permit or development agreement with one or more other
developers.
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.
Shea Homes Dev Agr 0222 2005.doc
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0001'75
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by Developer with the provisions of this Agreement,
the Agreement shall be reviewed annually in accordance with
Moorpark Municipal Code Chapter 15.40. of City or any
successor thereof then in effect. The failure of City to
conduct any such annual review shall not, in any manner,
constitute a breach of this Agreement by City, diminish,
impede, or abrogate the obligations of Developer hereunder or
render this Agreement invalid or void. At the same time as
the referenced annual review, City shall also review
Developer's compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, shall be
excused during any period of "Excusable Delay ", as hereinafter
defined, provided that the Party claiming the delay gives
notice of the delay to the other Parties as soon as possible
after the same has been ascertained. For purposes hereof,
Excusable Delay shall mean delay that directly affects, and is
beyond the reasonable control of, the Party claiming the
delay, including without limitation: (a) act of God; (b) civil
commotion; (c) riot; (d) strike, picketing or other labor
dispute; (e) shortage of materials or supplies; (e) damage to
work in progress by reason of fire, flood, earthquake or other
casualty; (f) failure, delay or inability of City to provide
adequate levels of public services, facilities or
infrastructure to the Property including, by way of example
only, the lack of water to serve any portion of the Property
due to drought; (g) delay caused by a restriction imposed or
mandated by a governmental entity other than City; or (h)
litigation brought by a third party attacking the validity of
this Agreement, a Project Approval, a Subsequent Approval or
any other action necessary for development of the Property.
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or willfully violates any order,
ruling or decision of any regulatory or judicial
body having jurisdiction over the Property or the
Project, provided that Developer may contest any
such order, ruling or decision by appropriate
proceedings conducted in good faith, in which
event no breach of this Agreement shall be deemed
Shea Homes Dev Agr 0222 2005.doc
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000176
to have occurred unless and until there is a final
adjudication adverse to Developer; or
(b) fails to make any payments required under this
Agreement; or
(c) materially breaches any of the provisions of the
Agreement.
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.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this subsection of the Agreement, the
nature of the alleged breach, and the manner in which
the breach may be satisfactorily cured. Every notice
shall include a period to cure, which period of time
shall not be less than ten (10) days from the date that
the notice is deemed received, provided if the
defaulting party cannot reasonably cure the breach
within the time set forth in the notice such party must
commence to cure the breach within such time limit and
diligently effect such cure thereafter. The notice
shall be deemed given on the date that it is personally
delivered or on the date that it is deposited in the
United States mail, in accordance with Section 20
hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection. Prior to pursuing the
remedies set forth herein, notice and an opportunity to
cure shall be provided pursuant to subsection 11.3
herein.
The remedies for breach of the Agreement by City shall
be injunctive relief and /or specific performance.
Shea Homes Dev Agr 0222 2005.doc
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000177
The remedies for breach of the Agreement by Developer
shall be injunctive relief and /or specific performance.
In addition, if the breach is of subsections 6.9, 6.10,
6.12, 6.131 6.14, 6.15, 6.16, 6.17, 6.18,
` • sue, or subsection 6.2--3-19 of this Agreement,
City shall have the right to withhold the issuance of
building permits to Developer throughout the Project
from the date that the notice of violation was given
pursuant to subsection 11.3 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 any
Developer who violates any City ordinance or state
statute.
12. Mortgage Protection. At the same time that City gives notice
to Developer of a breach, City shall send a copy of the notice
to each holder of record of any deed of trust on the portion
of the Property in which Developer has a legal interest
( "Financier "), provided that the Financier has given prior
written notice of its name and mailing address to City and the
notice makes specific reference to this section. The copies
shall be sent by United States mail, registered or certified,
postage prepaid, return receipt requested, and shall be deemed
received upon the third (3rd) day after deposit.
Each Financier that has given prior notice to City pursuant to
this section shall have the right, at its option and insofar
as the rights of City are concerned, to cure any such breach
within fifteen (15) days after the receipt of the notice from
City. If such breach cannot be cured within such time period,
the Financier shall have such additional period as may be
reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and
commences the cure within fifteen (15) days after receipt of
the notice from City and thereafter diligently prosecutes the
same to completion. City shall not commence legal action
against Developer by reason of Developer's breach without
allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be
binding and effective against the Financier and every owner of
the Property, or part thereof, whose title thereto is acquired
by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time,
Developer may deliver written notice to City and City may
Shea Homes Dev Agr 0222 2005.doc
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0001'78
deliver written notice to Developer requesting that such Party
certify in writing that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and a
binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment,
and (iii) the requesting Party is not in breach of this
Agreement, or if in breach, a description of each such breach.
The Party receiving such a request shall execute and return
the certificate within thirty (30) days following receipt of
the notice. City acknowledges that a certificate may be
relied upon by successors in interest to the Developer who
requested the certificate and by holders of record of deeds of
trust on the portion of the Property in which that Developer
has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
herewith may be appealed by the Developer to the City Council,
provided that any such appeal shall be filed with the City
Clerk of City within ten (10) days after the affected
Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify
the staff decision within thirty (30) days after the appeal
was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of ter, ��— Ne. --S-g- Chapter 15.40 of the
.............. .
Moorpark Municipal Code of City or any successor thereof then
..... - .......
in effect, this Agreement may be amended or terminated, in
whole or in part, by mutual consent of City and the affected
Developer.
15.1 Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indemnification. Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims, demands,
damages, injuries or judgments arising out of, or resulting in
Shea Homes Dev Agr 0222 2005.doc
-33-
000179
any way from, Developer's performance pursuant to this
Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and
agents from and against any action or proceeding to attack,
review, set aside, void or annul this Agreement, or any
provision thereof, or any Project Approval or Subsequent
Approval or modifications thereto, or any other subsequent
entitlements for the project and including any related
environmental approval.
17. Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on the
date the Enabling Ordinance becomes effective pursuant to
Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
for a term of twenty (20) years commencing on its operative
date or until the close of escrow on the initial sale of the
last Affordable Housing Unit, whichever occurs last, unless
said term is amended or the Agreement is sooner terminated as
otherwise provided herein.
Expiration of the term or earlier termination 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
Co 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.
Shea Homes Dev Agr 0222 2005.doc
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000180
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof, and
all prior agreements or understandings, oral or written, are
hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of any of
the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole benefit of the Parties and their
successors in interest. No other person shall have any right
of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Gr-d � Chapter 15.40 of
- - --- - - - - -- Moorpark Municipal Code of City or any successor thereof
-he Moorpark
................
then in effect.
Shea Homes Dev Agr 0222 2005.doc
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000181,
27. Cooperation Between City and Developer. City and Developer
shall execute and deliver to the other all such other and
further instruments and documents as may be necessary to carry
out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience of reference only, and they shall not constitute a
part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in conflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail. Should any provision of the
Implementation Plan be found to be in conflict with any
provision of this Agreement, the provisions of the
Implementation Plan shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
Seen prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Attorneys' Fees. In the event any action, suit or proceeding
is brought for the enforcement or declaration of any right or
obligation pursuant to, or as a result of any alleged breach
of, this Agreement, the prevailing Party shall be entitled to
its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such
action, suit or proceeding shall include an award thereof.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
Shea Homes Dev Agr 0222 2005.doc
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000182
IN WITNESS WHEREOF, and City of Moorpark
have executed this Development Agreement on the date first above
written.
CITY OF MOORPARK
Patrick Hunter
Mayor
OWNER /DEVELOPER
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Shea Homes Dev Agr 0222 2005.doc
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000183
EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
.G .... -44
000184
EXHIBIT "C"
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") is made
and entered into as of the day of
by and between MGGNL NGR 1"1GG - PAR- K - --L: n.-a—
(hereinaf ter referred to as "DEVELOPER ") , w,e
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
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WHEREAS, Developer has received City _approval- Lo develop
.......-
_. C'
e.ei and detached units on approximately 1.4.8 acres,
_.. _..... — _ -- - -- —
-
nc•kad.ng the private street known as Fremont Street, generally
- -- s- -
oc ,-�d south and east of said Fremont Street consistent. with
.r,r conditions of approval for Vesting Tentative Tract Map No.
-... _
��25 \'TTM 5425) and Residents -al Planned Development. Pere t No.
.
— - -- —
200 02 (RTID 2003 -02) , collectively the _ Project, aria city
Resolution No. 2005 -- the Conditions o A-)- -aval;
- - - - -- - - - - - --
a riz11
vv`H RYAS, izi the Development_AgreemenL between Developer and
ty, � ro
g ^ Developer a Tees to vide five units to moderate - - - - -- P _ - _ P � rnco!iie
households, nine units to low income buyers, and six units to
very low income buyers of approximately 1,600 scaare feet at
- - _...
.al.e. prices and terms and conditions as referenced in Sections
2. and -;. of this Agreement.
NOW, THEREFORE, IT IS AGREED by and between the DEVELOPER and
the CITY as follows:
SECTION 1. T f � nnn r ,arm_
z� - . -. --- — -The CITY shall assume
'b_ ble for marketing the affordable units, selecting and
--
qualifying eligible buyers for the units, and overseeing the
2
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000186
escrow processes to sell the affordable units to moderate, low
_.....
_ -_
income and very low income households. In the event of
termination of this Agreement, Developer shall in any event
comply with all development conditions referenced in -tom
- ---- 1. the recitals and all terms and conditions of its
-- - - __ -- — . ............ ........ ......... -. ....
Agreement with the City.
SECTION 2. Terms of Sale.
2.1 Language pertaining to the timing on sale of the
affordable units relative to the market rate units will be
inserted prior to the Planning Commission public hearing
r,Fa_..
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tA?-el c nd—
2.4 DEVELOPER agrees to deposit Six: 7'1iousand
Dol ', ($6, 000 ; 2-x-8) into each of the
-- - -....
aforementioned twenty (20) t-��e��escrows at the opening of
said escrow for each of the affordable units, as a deposit
against usual and customary seller's share of escrow and closing
costs. To the extent that seller's share of closing costs
exceed Six. Thousand, Dollars ($6, 000)3- ;�9-4, CITY or qualified
_ _. - - - -- _. -
mocerate, low or very low income buyer shall pay all escrow and
3
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000187
closing costs in excess of this amount.
closing costs are less than Six Thousand
DEVELOPER shall be entitled to a refund of
If seller's share of
Dollars ($6,000 )'��,
the overage.
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 moderate, 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 a CITY approved homebuyer education training
workshop, and CITY approved documents for the transaction,
including a promissory note, deed of trust, and resale
restriction agreement and option to purchase (the "Affordability
Documents "), shall 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
approving any subsequent sale of that housing unit and enforcing
the Affordability Covenants.
SECTION 3. Conditions of Purchase and Sale. If a
qualified moderate, 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 final inspection
approval 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 moderate,
low or very low income buyer has not been identified at the time
DEVELOPER receives its final inspection approval for the a
' ,L�r �-- market rate units
-�-� ' ` �- -� ��.� � �- --�� � �- -and e�- q��e- e�rt�- -{-1 -8 �- �
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.
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SECTION 4. Quality of Construction. DEVELOPER and CITY
agree that L-ets —Ne. ', 11 and 25 shall be designated as the Ie_
erg r=- tic - -- moderate, low and very low income units. ire
... —_._ __.._ _
affordable unit shall be not less than
_:�_.i4-44.1,600 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
3 {r�rz ideas ical to that of all other units constructed in
this Project and subject to all eConditions of Apprc-val
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
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
5
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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:
8.1.1 Failure by the DEVELOPER to duly perform,
comply with and observe any of the conditions, terms, or
covenants of TTM No. 5�;G7 5425 or RPD No. `"`�-- �200:� -02 or
VAR
Agreement, or the Development 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.
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
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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
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
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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,
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
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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
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.
8.8 Termination. The City's rights and remedies set
forth herein shall include as a cumulative remedy the right to
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terminate this Agreement if an
pursuant to section 8.1 herein.
minimum, require full compliance
described in section 1 herein.
Event of Default is not cured,
Such termination shall, at a
with the development conditions
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) Severabilit . 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.
(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
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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
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
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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 supercede 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.
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.
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CITY:
CITY OF MOORPARK
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
DEVELOPER:
16y, &♦, i i =021.3 •
By
ENRON
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5999 Par-
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Teleph ne ., X53
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