HomeMy WebLinkAboutAGENDA REPORT 2005 0504 CC REG ITEM 09AITEM q. A.
CITY OF MIOORPAW, CALIPORN1A
City Council Meeting
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ACTION :. 17A'e- ?mod
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BY:
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: The Honorable City Council
FROM: Steven Kueny, City Manager
DATE: April 27, 2005 (CC Meeting of 5/4/2005)
SUBJECT: Consider Proposed Development Agreement Between North
Park Village Limited Partnership and City of Moorpark
Pertaining to General Plan Amendment No. 2001 -05,
Specific Plan No. 2001 -01, and Zone Change No. 2001 -02
BACKGROUND /DISCUSSION
Background information and discussion of this draft Development
Agreement is included in the staff report for Item 8A.
STAFF RECObMNDATION
Refer the draft Development Agreement to the Planning Commission
and schedule City Council Public Hearing for a date certain in
June, 2005.
Attachment: Proposed Development Agreement by and between the
City of Moorpark and North Park Village Limited Partnership
0Q0s 111) 5
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
DRAFT
04.27.2005
PREANNEXATION DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
North Park Village LP
for North Park Specific Plan No. 11
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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 , by and between the CITY OF MOORPARK,
a municipal corporation, (referred to hereinafter as "City ") and
NORTH PARK VILLAGE L.P., a California limited partnership, owner
entity with a legal and equitable interest in real property within
the City generally referred to as North Park Specific Plan 11
(referred to hereinafter individually as "Developer ")l. The 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, the 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, the 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
certification of the Final Program Environmental Impact
Report( "EIR ") the City Council approved a Mitigation
Monitoring and Reporting Program (MMRP) to ensure
compliance with the mitigation measures contained in
the Final Program EIR ( "the Mitigation Monitoring and
Reporting Program, General Plan Amendment No. 2001 -
05("GPA 2001 -05 "), and Specific Plan 11 (2001 -01) for
approximately 3,544.3 acres of land adjacent to the
City ( "the Property ") as more specifically described in
Exhibit "A" attached hereto and incorporated herein,
and changed the zoning of the Specific Plan 11 area
pursuant to Zone Change No. 2001 -02 ("ZC 2001 -0211).
1.3. GPA 2001 -05, SP 2001 -01, and ZC 2001 -02, (collectively
"the Project Approvals "; individually "a Project
1 Approximately 9.1 acres of the Specific Plan 11 area is owned by Ventura
County Community College District.
Approval ") provide for development of the Property as a
master planned community and construction of certain
off -site improvements in connection therewith ( "the
Project ").
1.4. By this Agreement, the 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, the 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 the City to permit the development
of the Property in accordance with the Project
Approvals and this Agreement. In consideration
thereof, Developer agrees to waive its rights to
legally challenge the limitations and 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. The City and Developer acknowledge and agree that the
consideration to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the City's General Plan,
as amended by GPA 2001 -05.
1.7. On
commenced
Agreement,
recommended
the Planning Commission of
noticed public hearing
the conclusion of the
of the Agreement.
duly
and at
approval
the City
on this
hearing
1.8. On , the City Council commenced a duly
noticed public hearing on this Agreement, and following
the conclusion of the hearing, approved the Agreement
by adoption of Ordinance No. ( "the Enabling
Ordinance ") on , 2005.
2. Property Subject To This Agreement. All of the Property in
the boundaries of Specific Plan 11 shall be subject to this
Agreement. The Property may also be referred to hereinafter
as "the site" or "the Project ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
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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 Property 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 or equitable interest is, and shall be
conclusively deemed to have consented and agreed to be
bound by the 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 effective date of the
sale or transfer, provided that the Developer: (i) was
not in breach of this Agreement at the time of the sale
or transfer: and (ii) prior to the sale or transfer,
deliver to the 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
the City discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
In the event of a partial assignment or transfer, the
assumption agreement referenced above shall include
provisions acceptable to the City to ensure that the
phased construction of affordable housing units
contemplated by subsection 6.11. is achieved and the
requirements and obligations of each successor are
consistent with the applicable provisions of the
Implementation Plan, regardless of the identity or
number of developers of the Project.
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4. Development of the Property. The following provisions shall
govern the subdivision, development and use of the Property.
4.1. Permitted Uses.
permitted uses
those that are
this Agreement.
The permitted and
of the Property shall
allowed by the Project
conditionally
be limited to
Approvals and
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, the Uniform
Administrative Code, any applicable federal or state
building requirements (collectively "the Building
Codes ") in effect at the time the building plans are
submitted for first plan check.
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.
5. Vesting of Development Rights.
5.1. Timing of Development. In Pardee Construction Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later - adopted initiative
restricting the rate of development to prevail against
the parties' agreement. The 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
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ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property provided the Property is developed in
accordance with the Project Approvals and this
Agreement. Nothing in this subsection shall be
construed to limit the City's right to ensure 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 Property (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement.
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 the City (collectively "City
Laws "), except City Laws that:
(a) change any permitted or
uses of the Property from that
Approvals, and this Agreement;
WE
conditionally permitted
allowed by the Project
OcyO' 12011L
(b) limit or reduce the density or intensity of the
Project, or any part thereof, or otherwise require any
reduction in the number of proposed buildings or other
improvements from that allowed by the Project Approvals
and this Agreement.
(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 twenty percent (200), including
without limitation Moorpark Municipal Code Chapter
17.38 or any successor thereto, within all approved
planning areas of Specific Plan 11; or
(g) modify the land use from that permitted by the
City's General Plan Land Use Element contained in the
Project Approvals 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
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acreage at the initiative of the City during the term
of this Agreement.
The term of any Subsequent Approval, except a tentative
map or subdivision improvement or other agreements
relating to the Project, shall be one (1) 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 the 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 the City's Building Inspector prior
to the expiration of that Approval.
It is understood by the 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 the 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
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allocated on any annual numerical basis or on any
allocation basis.
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent the City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of a
final inspection or certificate of occupancy, provided
that the moratorium is adopted or imposed (i) on a
City -wide basis to all substantially similar types of
development projects and properties with similar land
use designations; and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
Developer Agreements.
6.1. Developer shall comply with (i)
the Project Approvals; (iii) all
for which it was the applicant
interest to the applicant; and
Monitoring and Reporting Program
supplemental actions.
this Agreement; (ii)
Subsequent Approvals
or a successor in
(iv) the Mitigation
end any subsequent or
6.2. All lands and interests in land dedicated to the 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 the City.
6.3. As a condition of the issuance of a building permit for
each residential and commercial use within the
boundaries of the Property, Developer shall pay the
City a development fee as described herein (the
"Development Fee "). The Development Fee may be
expended by the 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, Ninety -Five Dollars
($8,895.00) per residential unit and Forty Thousand,
Twenty -Eight Dollars ($40,028.00) per gross acre of
commercial land on which the use is located. The fee
for both residential and commercial uses shall be
adjusted annually commencing one (1) year after the
first residential building permit is issued within the
Project by any increase in the Consumer Price Index
(CPI) until all fees have been paid. The CPI increase
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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 the Project (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.
In the event the CPI referred to above in this
subsection is discontinued or revised, such successor
index with which it is replaced shall be used in order
to obtain substantially the same result as would
otherwise have been obtained if the CPI had not been
discontinued or revised.
6.4. As a condition of the issuance of a building permit for
each residential and commercial use within the
boundaries of Specific Plan 11, Developer shall pay the
City a traffic mitigation fee as described herein
("Citywide Traffic Fee "). The Citywide Traffic Fee may
be expended by the City in its sole and unfettered
discretion. On the date this Agreement is approved by
the City Council, the amount of the Citywide Traffic
Fee shall be Five Thousand, Seventy -Five Dollars
($5,075.00) per market -rate residential unit, and
Twenty -Two Thousand, Eight Hundred, Thirty -Eight
Dollars ($22,838.00) per acre of commercial land on
which the 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.
In the event the Bid Price Index referred to above in
this subsection is discontinued or revised, such
successor index with which it is replaced shall be used
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in order to obtain substantially the same result as
would otherwise have been obtained if the Bid Price
Index had not been discontinued or revised.
6.5. As a condition of issuance of a building permit for
each residential and commercial use within the
boundaries of Specific Plan 11, Developer shall pay the
City a community services fee as described herein
(Community Services Fee). The Community Services Fee
may be expended by the 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
commercial land on which the commercial use is located.
Commencing on January 1, 2008, and annually thereafter,
the Community Services Fee for both residential and
commercial uses 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.
In the event the CPI referred to above in this
subsection is discontinued or revised, such successor
index with which it is replaced shall be used in order
to obtain substantially the same result as would
otherwise have been obtained if the CPI had not been
discontinued or revised.
6.6. Upon the execution of this Agreement, Developer shall
pay all outstanding City processing costs related to
preparation of this Agreement, Project Approvals,
Specific Plan 11 and Final Program EIR.
6.7. Within the boundaries of t
dedicate, at its sole cost
thirty -nine (39) acres of
shown as public parks in tY
PA 37 and approximately foi
for a nature park as shown
ie Property, Developer shall
and expense, the approximate
park land to the City as
e Specific Plan or PA 10 and
r and one -half (4 -1/2) acres
on the Specific Plan for PA
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11. At its sole cost and expense, but subject to the
limitations set forth in this subsection, Developer
shall make improvements to the park land dedicated
pursuant to this subsection and shall provide
maintenance of the land and improvements as provided
for in this subsection.
At the City's sole discretion, the park site
improvements shall include, but not be limited to, one
or more of any of the following items or other
improvements:
A. Softball and /or baseball fields including
backstops, foul line chain link fencing, fenced
dugouts with concrete floors with lighting for
one (1) or more fields if desired by the City;
B. Regulation soccer fields, (225 feet wide and 360
feet long with no obstructions) that do not
overlap onto the softball /baseball field areas,
except as approved by the City Council, and two
(2) semi - permanent goals with lighting for one
(1) or more fields if desired by the City;
C. Lighted tennis courts;
D. Lighted full court basketball courts;
E. Children's play equipment /apparatus and tot lots;
F. Concrete block restroom structure with a
concession facility with tile roof designed
consistent with applicable health codes to allow
the sale of prepared foods;
G. Picnic shelter with solid roof and matching tile
to the restroom structure;
H. Off - street parking with standard sized parking
spaces.
I. Skate facility
J. Swimming pools which could include recreational
and competitive uses with deck, fencing,
restroom, and shower /locker facility;
K. Gymnasium and recreation center with an office,
meeting rooms, bleachers, and rest rooms/ locker
facilities. Size of the basketball court shall
be consistent with the court at Arroyo Vista
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Recreation Center and the gymnasium shall be
designed to accommodate two (2) volleyball courts
that meet CIF regulation dimensions;
L. Outdoor theater; and
M. Typical landscape and hardscape facilities and
related amenities for community and neighborhood
parks, including but not limited to turf grass,
trees, shrubs, concrete sidewalks and curbing,
underground drainage, security lighting, tables,
benches, fencing, trash receptacles, bike racks,
barbecues and signage.
Developer agrees to provide Nine Million, Seven Hundred
Fifty Thousand Dollars ($9,750,000.00) for construction
of park improvements for PA 10 and PA 37 and Five
Hundred Thousand Dollars ($500,000.00) for PA 11,
collectively referred to as Park Improvement Costs.
Said amounts shall not include any overhead,
administrative or similar costs, or profit by Developer
or any Developer- affiliated entity. In addition,
Developer shall be responsible for the following costs
which are not a part of the Park Improvement Costs:
utility stub outs (domestic water, recycled water,
electrical, gas, sewer, storm drains, cable television,
telephone, and fiber optics) at locations as determined
by the City Manager or his /her designee, grading,
drainage, adjacent street improvements, professional
services for the design of the park and related
improvements, City costs for plan check, inspection,
and maintenance including 15% City overhead on any
contract services until the park improvements are
accepted by the City and the swim lagoon which
Developer is obligated to construct as part of the
lake. Commencing one (1) year after the first
residential building permit is issued within Specific
Plan and annually thereafter, the amount of Park
Improvement Costs shall be increased to reflect the
change in the Price Index that includes park and
building construction 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 CPI for any annual indexing, it
shall remain at its then current amount until such time
as the next subsequent annual indexing, which results
in an increase.
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In the event the Price Index referred to above in this
subsection is discontinued or revised, such successor
index with which it is replaced shall be used in order
to obtain substantially the same result as would
otherwise have been obtained if the Price Index had not
been discontinued or revised.
Final design, plans and specifications shall be as
approved by the City Council, including applicable
handicapped requirements, and shall include, but not be
limited to, grading, street improvements, drainage,
hardscape (walkways, bike paths, etc.), landscape
(trees, shrubs, groundcover, and turf), security
lighting for the park and parking lot, and
miscellaneous amenities in quantities as determined
necessary by the City Manager or his /her designee (tot
lot and park perimeter fencing, drinking fountains,
trash receptacles, trash bin enclosures, bike racks,
barbecues, picnic tables, pay phones, identification
monument signs, and other signage, etc.). The maximum
average cross slope for the entire park site exclusive
of City Council approved slope areas shall be two
percent (2 %) with the intent that the maximum amount of
land possible be utilized for park improvements
included in this subsection. This cross slope standard
may be amended based upon approval by the City Council
of a specific park design. The improvement plans and
specifications shall be similar to those improvements
constructed at other City parks as determined by the
City Council at its sole discretion. If the park is
allowed to be rough graded prior to installation of
improvements, it shall be hydroseeded and provided with
other appropriate means of erosion control. At its
sole cost and expense, Developer shall: (i) design the
park improvements and submit conceptual plans for City
Council approval; (ii) prepare final design, plans and
specifications and submit the same to the City Council
for approval; (iii) submit the approved final plans and
specifications to the City for plan check along with
appropriate fees; and (iv) pay the City for inspection
of the construction.
The park sites shall be dedicated to the City improved
and available (open) to the public prior to the
occupancy of the 500th dwelling unit within the
boundaries of Specific Plan. The City Council at is
sole discretion may postpone the time the park must be
available to the public to prior to occupancy of the
750th dwelling unit. The park site shall be offered for
dedication to the City upon approval of the first final
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map in which the park site is located. After each park
is opened to the public and prior to its formal
acceptance by the City, Developer shall provide a
minimum of one (1) year and a maximum of two (2) years
of maintenance for the park land and improvements,
including all labor, materials, and utilities, in
accordance with the specifications used by the City at
its parks. All land provided by Developer to City for
parks, recreation and open space purposes shall be
deeded to the City without any restrictions for current
or future use.
Developer agrees that the above - described improvements
along with the dedication of the above - described park
land and other requirements of subsection 6.9 shall be
deemed to satisfy the "Quimby" requirement set forth at
California Government Code section 66477 et seq. for
all subsequent subdivision maps within the Specific
Plan area for a maximum of 1,680 residential units.
Developer shall secure the above - described improvements
and the minimum one -year (1 -year) maintenance
requirement by the execution of City's standard
subdivision agreement prior to the approval of the
first final tract map or the first final parcel map
within the Specific Plan area.
Prior to issuance of a building permit for each
commercial building, Developer agrees to pay fifty
cents ($.50) per square foot of gross floor area of
said building to be used for park improvements at the
City Council's sole discretion. Commencing on January
1, 2008, and annually thereafter, this amount shall be
adjusted in the same manner as provided for in this
subsection 6.7. for adjustments to the Park Improvement
Costs.
In addition to the required construction and
maintenance described above, Developer shall at its
sole cost and expense, as a condition of issuance of a
building permit for each of the 1,500 market rate
residential units in the Project, pay to City One
Thousand, Six Hundred Ninety Dollars ($1,690.00) to
fund the replacement of the park amenities as
determined by City at its sole discretion. Commencing
on January 1, 2008, and annually thereafter, this
amount shall be adjusted in the same manner as provided
for in this subsection 6.7. for adjustment to the Park
Improvement Costs.
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The City, at its sole discretion, may take the Park
Improvement Costs in cash and construct the
improvements consistent with applicable state law and
municipal codes. In such case, Developer is obligated
to grade the sites to City's approved specifications
and install underground drainage system, provide
utility stub outs as approved by City, provide the
equivalent of twelve months of maintenance costs
including labor, materials, and utilities, and
construct adjacent streets to City standards in
addition to paying the Park Improvement Costs. The City
may elect this option for any of the three referenced
sites, and said Improvement Costs would be paid to the
City on a pro rata acreage basis. In such case, the
payment would be made by Developer within thirty (30)
days of City's award of bid.
The City Council, at its sole discretion, may require
Developer to pay the City up to one -third (1/3) of the
then current Park Improvement Cost amount in cash to be
used at the City Council's sole discretion for park and
recreation improvements that benefit City residents at
another location within the City. Such decision by the
City shall be made within 180 calendar days of
Council's approval of the Implementation Plan as
referenced in subsection 6.31. of this Agreement.
Developer's payment to the City shall be made within
thirty (30) calendar days of the City's written request
for said payment. The City must obligate any Park
Improvement Cost funds received from Developer within
three ( 3 ) years of receipt of said funds.
Commencing on the first day of the month after the
required Developer funded maintenance period ends for
the PA 10 site, Developer agrees to pay in advance for
each calendar year, or portion thereof, the equivalent
annual cost for each of the then applicable assessments
for City's parks maintenance districts for each
residential, commercial, and institutional lot or use
in the Project until such time as that lot or use is
assessed as part of the City's park maintenance
districts. This applies whether or not each of the
1,680 residential lots or units and the commercial and
institutional lots have been created by a subdivision.
Prior to approval of the first final tract map for
Specific Plan No. 11 at the City Council's sole
discretion, approximately one and one -half (1 %) acres
of PA 10 may be used as the fire station site in lieu
of PA 23. In such event the aforementioned Park
0003 -31
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Improvement Cost shall not be adjusted as a result of a
reduction in acreage for park purposes and PA 23 shall
be deeded to City at no cost for open space purposes.
6.8. 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 Municipal
Water District. Said lines shall be installed prior to
the final cap being placed on all streets whether the
recycled water is available or not. 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
the City at its sole discretion. The recycled water
line(s) shall be installed for each City- approved phase
of development. Developer shall install dual water
meters and services for all locations determined
necessary by the City at its sole discretion to ensure
that both potable and recycled water are available
including but not limited to locations where restrooms
and drinking fountains are planned.
6.9. Greenbelts, open space areas, landscaped areas, and
trails lying within the Property (not covered by any
other section) shall be conveyed to the City in a form
approved by the City Attorney, or to one or more
homeowners or property owners associations as
determined by the City Council at its sole and
unfettered discretion, as a condition of recordation of
the final map defining the area within which said areas
are located. Greenbelts, buffers and open space areas
may include wetlands, storm water detention areas,
landscaping and decorative planting areas that do not
interfere with the greenbelt, buffer and open space
uses as determined by the City at its sole and
unfettered discretion. Such areas not dedicated to City
shall include a conservation easement granted to City
in a form acceptable to the City consistent with Civil
Code Section 815 et seq.
6.10. (a) Developer shall dedicate PA 27 (Nature Preserve),
as shown in Specific Plan 11, in fee simple
interest to City for the purposes of permanent
open space preservation. Such dedication shall be
in the form of an irrevocable offer of dedication
on the first final map for the property, or at
-17- 0 0 01 ID" 31020
City's sole option, fee title transfer by grant
deed and legal description may be requested by
City to occur prior to approval of a Grading
Permit for the property. City may at its sole
discretion approve another agency, such as the
Santa Monica Mountains Conservancy, to hold a
grant deed in Trust for the Nature Preserve.
(b) Concurrent with City or other City- approved
agency acceptance of fee title for the Developer
(and at City's sole discretion, the Homeowners'
Association when it is legally a successor to
Developer, or as a maintenance component of a
Community Facilities District if such District is
authorized by the City Council) shall submit an
annual payment to City for the purposes of
permanent management, maintenance, and mitigation
monitoring for the Nature Preserve. On the
effective date of this Agreement, the amount of
the Open Space Maintenance Fee shall be One
Hundred Thousand Dollars ($100,000.00) per year.
The establishment of the HOA or other means as
approved by City Council at its sole discretion
shall include provisions for this perpetual
obligation. The fee amount shall be adjusted
annually on the anniversary of its acceptance by
City, as provided above, by any increase in the
Consumer Price Index (CPI) . The CPI increase
shall be determined by using the information
provided by the U.S. Department of Labor, Bureau
of Labor Statistics, for all urban consumers
within the Los Angeles /Anaheim /Riverside
metropolitan area during the prior year. The
calculation shall be made using the month which
is four (4) months prior to the month in which
the payment is due (e.g., if the fee payment due
date occurs in October, then the month of June is
used to calculate the increase) . In the event
there is a decrease in the referenced Index for
any annual indexing, the Open Space Maintenance
Fee shall remain at its then current amount until
such time as the next subsequent annual indexing
which results in an increase.
In the event the CPI referred to above in this
subsection is discontinued or revised, such
successor index with which it is replaced shall
be used in order to obtain substantially the same
result as would otherwise have been obtained if
the CPI had not been discontinued or revised.
-18- 0()0 i :'3
(c) Concurrently with recordation of the first final
map for the Property, Developer agrees to grant,
in a form acceptable to City, a conservation
easement to retain as shown in the Specific Plan,
in a predominantly open space condition
consistent with Civil Code Section 815 et se q.,
except for intended uses as shown in the Specific
Plan and as provided for in this Agreement for PA
12, 13, 14, 15, 16, 17, 18, 19, 20, 41, 42, 43,
44, 45, 46, 47, 54, 55, 64, 65 and 66.
(d) No extraction of subsurface mineral resources,
excavation, drilling, pumping, mining, or similar
activity shall be allowed in any portion of the
Property zoned Open Space or in the Nature
Preserve. The limitations and exclusions
described in this subsection shall be included in
the conservation easements.
6.11. Developer shall provide twenty -seven (27) three (3)
bedroom and two (2) bath single family units with a
minimum of 1,200 square feet to be sold to buyers who
meet the criteria for low income (80 percent or less
of median income); eighteen (18) three (3) bedroom and
two (2) bath single family units with a minimum of
1,200 square feet to be sold to buyers who meet the
criteria for very low income (50 percent or less of
median income); twenty -seven (27) four (4) bedroom and
two (2) bath single family units with a minimum of
1,320 square feet to be sold to buyers who meet the
criteria for low income (80 percent or less of median
income), and eighteen (18) four (4) bedroom and two
(2) bath single family units with a minimum of 1,320
square feet to be sold to buyers who meet the criteria
for very low income (50 percent or less of median
income). All single family 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, have a minimum of
fifteen (15) feet for rear years, twenty (20) feet for
front yards, and sideyards as determined by City at
its sole discretion at time the Residential Planned
Development (RPD) permit is approved, include concrete
roof tiles, and other amenities generally provided in
the market -rate housing within the City (e.g., air
conditioning /central heating, washer /dryer hookups,
garbage disposal, built -in dishwasher, concrete
driveway, automatic garage door opener). The
aforementioned ninety (90) units are collectively
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referred to as the for sale affordable housing units.
At the City's sole discretion at the time of RPD
approval, the for sale affordable housing units may be
either attached or detached or some combination of
attached and detached, as well as City's determination
on other requirements and features for the development
of the for sale affordable units including but not
limited to requirements for HOA, assessment districts,
standards for interior streets, and other items
typically determined as part of the City's
discretionary approval for tract maps and RPDs.
Developer further agrees that it has the obligation to
provide the required number of for sale affordable
housing units as specified above regardless of the
cost to acquire or construct said housing units.
Developer further agrees that the 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 forth the
Developer's obligations of this subsection 6.11 and
the City's obligations per subsection 7.7. The
Purchase and Sale Agreement shall be in the form
attached hereto as Exhibit ". The Developer agrees
to pay all City costs for preparation of the Purchase
and Sale Agreement and its implementation and
administration through the sale and occupancy of the
last of the ninety (90) for sale affordable housing
units.
Developer agrees that the intent of this subsection
6.11 and the Purchase and Sale Agreement is to provide
the ninety (90) for sale affordable housing units
consistent with applicable State and Federal 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
pertaining to the selection of eligible first time
home buyers and all requirements placed on the sale of
the ninety (90) for sale affordable housing units to
said buyers. The difference between the initial
purchase price by a qualified buyer and market value
shall be retained by the City as a second deed of
trust.
-20-
The actual initial purchase price (Affordable Sales
Price) paid by a qualified buyer, market value, buyer
eligibility, resale restrictions, equity share and
second trust deed provisions, and any other items
determined necessary by the City will be approved by
the City Council in its sole and unfettered discretion
prior to or at such time as qualified buyers are
selected to purchase the affordable housing units.
All units shall meet the criteria of all applicable
State laws to qualify as newly affordable to low
income and very low income persons in the quantity as
specified in this Agreement. 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 6.11 shall be made at City's sole
discretion. If any conflict exists between this
Agreement and the Purchase and Sale Agreement or
Specific Plan 11, then the provision providing the
City the most favorable language for assisting
eligible first time home buyers who meet the
qualifications of low and very low income shall
prevail.
Developer agrees to provide new home warranties for
the maximum time required by State law, but in no
event less than (10) years. The City shall have the
right to approve the home warranty program at its sole
discretion. Developer agrees that all such warranties
shall inure to the benefit of and be enforceable by
the ultimate occupants of the 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 the 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 City and final walk - through approval of
condition of unit before close of sale. Any options
provided to buyers of similar market rate units in the
City 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 for the affordable
units exceed $100.00 for each affordable unit,
�� ��. %Z1
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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 Affordable Sales 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 70% of
$80,600.00, the then 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 Affordable Sales
Price for a low income household of 4 or fewer would
be $165,000 under current market conditions, based
upon the following assumptions:
Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase
Price
$165,000
Down Payment
5% of Affordable
Sales Price
$8,250
Loan Amount
Affordable Sales
Price less down
payment
$156,750
Interest Rate
5.95%
Property Tax
1.25% of
Affordable Sales
Price
$172 /mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$30 /mo.
Utilities
$171 /mo.
The Affordable Sales Price for a low- income household
of five or more would be based on the affordable
housing cost for the actual household size.
The assumptions associated with the above purchase
price figures for low income households include a 5%
down payment, based on the Affordable Sales Price,
mortgage interest rate of 5.95 %, no mortgage
X001037
-22-
insurance, property tax rate of
Affordable Sales Price, homeowners'
of $100 per month, fire insurance
maintenance costs of $30 per month,
$171 per month for a household of
bedroom unit.
1.25 %, based on
association dues
Df $20 per month,
and utilities of
4, assuming a 3
The Affordable Sales 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 $80,600.00, 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 Affordable Sales Price for a very low income
household of 4 or fewer would be $104,000.00 under current
market conditions, based upon the following assumptions:
Very Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase
Price
$104,000
Down Payment
5% of Affordable
Sales Price
$5,200
Loan Amount
Affordable Sales
Price less down
payment
$98,800
Interest Rate
5.95%
Property Tax
1.25% of
Affordable Sales
Price
$108 /mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$30 /mo.
Utilities
$171 /mo.
That Affordable Sales Price for a very low- income
household of five or more would be based on the
affordable housing cost for the actual household size.
The assumptions associated with the above purchase
price figures for very low income households include a
5% down payment, based on the Affordable Sales Price,
mortgage interest rate of 5.95 %, no mortgage
insurance, property tax rate of 1.25 %, based on
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(D 0 C 0 8
Initial Purchase Price, homeowners' association dues
of $100 per month, fire insurance of $20 per month,
maintenance costs of $30 per month, and utilities of
$171 per month for a household of 4, assuming a 3
bedroom unit.
Developer acknowledges that changes in market
conditions may result in changes to the Affordable
Sales Price, down payment amounts, mortgage interest
rates, and other factors for the 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 to
achieve substantially the same result as would
otherwise have been obtained had it not been changed.
In the event the City, at its sole discretion
purchases one or more of the for sale affordable units
from Developer in lieu of a qualified buyer, the
Affordable Sales Price shall be based on a household
size of 4 persons and consistent with all requirements
of this subsection 6.11. 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, 2007, and on
March 1St for each subsequent year, the 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. In the event the CPI referred to above in
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U10 (11 9 ;9
this subsection is discontinued or revised, such
successor index with which it is replaced shall be
used in order to obtain substantially the same result
as would otherwise have been obtained if the CPI had
not been discontinued or revised.
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 prior to the closing of the initial
sale to a qualified buyer or the City in lieu of a
qualified buyer.
Prior to approval of the first residential occupancy in
Specific Plan 11, Developer must have received city
approval of a tentative tract map and residential
planned development (RPD) permit and any other required
permits and approvals to allow construction of the
referenced ninety (90) for sale affordable housing
units on PA 9 within Specific Plan 11. Developer shall
be responsible for the following at its sole cost and
expense:
(a) Processing of City required entitlements including
but not limited to Tentative Tract and Final Map
and Residential Planned Development Permit (RPD)
and related.
(b) Payment of all required City fees for processing
of applications for (a) and (b), above, consistent
with City's Fee Schedule in effect at the time an
application is filed with the City.
(c) Pay all City capital improvement and mitigation
fees including but not limited to those fees
required in subsections 6.3, 6.4, 6.5, 6.12, 6.16,
6.19 and 6.32 of this Agreement.
(d) Grade the site per approved map, install all
utilities, and construct all public and private
improvements consistent with City standards
typical for such subdivision.
00001110
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If for any reason less than ninety (90) dwelling units
are approved for PA 9 by the City, Developer shall pay
Three Hundred Thousand Dollars ($300,000.00) to City
for each unit less than the required ninety (90)
units. The total amount shall be due and payable prior
to occupancy of the first for sale affordable housing
unit. This amount shall be adjusted on March 1, 2007,
by any increase in the median price of single family
detached for sale housing in Ventura County as most
recently published by Data Quick (Housing Index) and
annually thereafter on each January 1. In the event
there is a decrease in the Housing Index for any
annual indexing, the amount due shall remain at its
then current amount until such time as the next
subsequent annual indexing which results in an
increase.
In the event the Housing Index referred to above in
this subsection is discontinued or revised, such
successor index with which it is replaced shall be
used in order to obtain substantially the same result
as would otherwise have been obtained if the Housing
Index had not been discontinued or revised.
In the event less than ninety (90) for sale affordable
housing units are approved, the first such unit
deducted from the required number of units shall be a
low income unit, and the second unit a very low income
unit, and so forth in the same order.
In the event Developer does not receive City approval
for at least eighty (80) dwelling units on PA 9 prior
to March 1, 2009, City at it's sole discretion can
require payment in the amount of Twenty -three Million
Dollars $23,000,000.00 payable prior to approval of
the first residential occupancy for Specific Plan 11.
Effective March 1, 2010, this amount shall increase by
one -half of one percent (.5 %) each month until paid.
Developer agrees to guarantee the affordability of
ninety (90) residential rental units for the life of
the Project as follows: 36 units at very low income
(50% of median income) and 54 units at low income (60%
of median income). The ninety (90) residential rental
units shall be referred to as affordable rental units
and shall be restricted for persons age 60 or older in
PA 49 of Specific Plan 11. The affordable rental
units shall consist of forty (40) two bedroom and one
(1) bath units with a minimum of 680 square feet and
A�.
-26-
fifty (50) one (1) bedroom and one (1) bath units with
a minimum of 580 square feet as follows:
Prior to
2 Bedroom
1 Bedroom
Total
Low
24
30
54
Very Low
16
20
36
Total
40
50
90
The method of selecting eligible tenants, tenant
eligibility requirements, the respective roles of the
City and the Developer and any other items determined
necessary by the City shall be set forth in an
Affordable Housing Implementation and Rental
Restriction Plan (the "Plan "). The Plan shall
restrict the rents of all ninety (90) units as
referenced above and shall be consistent with this
Agreement and approved by the City Council in its
sole and unfettered discretion prior to the final
inspection and occupancy approval for the first
residential unit in the Project. The Developer and
City shall, prior to the occupancy of the first
residential unit for the Project, execute an
Affordable Housing Agreement that incorporates the
Plan in total and is consistent with this Agreement.
Developer agrees to the extent permitted by
applicable state and federal law to grant priority to
eligible Moorpark residents for the life of the
Project. Developer shall pay the City's direct costs
for preparation and review of the Plan and the
Affordable Housing Agreement, up to a maximum of Ten
Thousand Dollars ($10,000.00). By mutual agreement
of Developer and City, in lieu of the aforementioned
Affordable Housing Agreement, these provisions may be
incorporated into the Regulatory Agreement if revenue
bonds are issued by the City for this Project.
In addition, the Developer agrees not to convert the
Project to for -sale condominiums, community
apartments, planned development, stock cooperative,
or other common interest development, or as
congregate care or assisted living facility for the
life of the Project. The approval process and
construction for the ninety (90) affordable rental
units shall include payment of all City improvement
and mitigation fees including but not limited to
those fees required in subsections 6.3, 6.4, 6.5,
6.12, 6.16, 6.19, and 6.32 of this Agreement.
In the event the affordable rental units are exempt
from the payment of any portion or all of the real
0 0 C 0' 1. ti
-27-
secured and unsecured property taxes, Developer shall
pay City a fee to offset such loss of property tax
payment to the City. Developer agrees prior to
occupancy of the first residential unit for the
Project, to enter into an agreement with the City to
pay the City each year the amount the City would have
received if they were not exempt from said payment of
property taxes. The agreement shall include but not
be limited to:
A. If that portion of the Project encompassing
the affordable rental units is sold or
transferred to another entity, the fee amount
shall increase based on the new value of the
property as if it was reassessed consistent
with applicable laws.
B. The first year amount shall be based on Eight
Hundred Dollars ($800.00) for each One Million
Dollars ($1,000,000.00) of value of the
property as if it was assessed for property
tax purposes consistent with applicable laws.
C. The payment amount shall increase two percent
(2 %) each year above the prior year amount
except as noted in A., above. In no event
shall there be a decrease in the amount paid
in any year compared to the prior year.
D. Payments shall be made twice each year on
dates as mutually agreed upon with provisions
for penalties and interest in the event of
late or non - payment.
6.12. Developer agrees that the Mitigation Measures included
in the certified Final Program EIR and approved
Mitigation Monitoring and Reporting Program, or
subsequent environmental clearance document approved by
the City Council, set forth the mitigation requirements
for air quality impacts. Developer agrees to pay to the
City an air quality mitigation fee, as described herein
(Air Quality Fee) , in satisfaction of the
Transportation Demand Management Fund mitigation
requirement in the Final Program EIR for Specific Plan
11. 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.
0000,13
At the time the Fee is due, the City may at its sole
discretion require Developer to purchase equipment,
vehicles, or other items, contract and pay for
services, or make improvements for which Developer
shall receive equivalent credit against Air Quality Fee
payments or refund of previous payments.
The Air Quality Fee shall be One Thousand, Six Hundred
Thirty -Six Dollars ($1,636.00) per market -rate
residential unit to be paid prior to the issuance of
each building permit. 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.
In the event the CPI referred to above in this
subsection is discontinued or revised, such successor
index with which it is replaced shall be used in order
to obtain substantially the same result as would
otherwise have been obtained if the CPI had not been
discontinued or revised.
For institutional and commercial 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.
6.13. Developer hereby waives any right that it may have
under California Government Code Section 65915 et.
seq., or any successor thereto, or any other provision
of Federal, State, or City laws or regulations for
application or use of any density bonus that would
increase the number of dwelling units approved to be
constructed on Specific Plan 11.
6.14. Developer agrees to cast affirmative ballots for the
formation of one or more assessment districts and
levying of assessments, for the maintenance of slope,
00 iii :.t s I
-29-
parkway and median landscaping and 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 and
street lighting in the event the aforementioned
assessment district is dissolved or altered in any way
or assessments are reduced or limited in any way by a
ballot election of property owners, or if the
assessment district is invalidated by court action.
Prior to recordation of the first final map for the
Property, if required by the 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 shall be more specifically
defined in the Plan and Subsequent Approvals.
6.15. Prior to issuance of the first grading permit for each
phase of grading as described in Specific Plan 11, all
oil drilling, pumping and extraction easements, and
any other mineral rights shall be acquired by
Developer for that portion of the Nature Preserve to
be dedicated to City with that phase of grading. This
shall be more specifically addressed in the
Implementation Plan referenced in subsection 6.31. of
this Agreement.
6.16. Developer shall pay the Los Angeles Avenue Area of
Contribution (AOC) fee for each residential lot, non-
residential 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, non - residential and institutional
use.
6.17. Developer shall install landscape screening along the
west side of PA -15 along the rear of the homes on
University Drive. The landscape plans shall be
approved by the Director of Community Development.
Installation of the landscaping shall occur prior to
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the issuance of the first building permit for the
Property.
6.18. Prior to submittal of an application for any
subdivision or the issuance of a grading permit
whichever comes first, Developer shall acquire the
approximate 9.1 acre portion of Specific Plan 11 owned
by the Ventura County Community College District
(VCCCD) and any land owned by VCCCD necessary for the
connection of Collins Drive to "A" and "E" streets.
6.19. Developer agrees to pay a Property Fee prior to
issuance of the final inspection approval for each
market -rate residential unit as follows:
The greater of:
1. Thirty Thousand Dollars ($30,000.00) per residential
unit adjusted annually commencing January 1, 2007, and
each January 1 thereafter by any increase in the
median price of a single family detached for sale
housing in Ventura County as the most recently
published by Data Quick (Housing Index). In the event
there is a decrease in the Housing Index for any
annual indexing, the Property Fee shall remain at its
then current amount until such time as the next
subsequent annual indexing which results in and
increase.
In the event the Housing Index referred to above in
this subsection is discontinued or revised, such
successor index with which it is replaced shall be
used in order to obtain substantially the same result
as would otherwise have been obtained if the Housing
Index had not been discontinued or revised.
SI"7
2. Two percent (2 %) of the total final sales price of
the real property (lot) and house construction as
reported to the Ventura County Assessor.
In the event the real property or dwelling unit is
leased rather than sold to a Bonafide Purchaser, then
prior to the effective date of the lease agreement,
the Developer at its cost shall cause an appraisal to
be prepared for the property to be leased to determine
its fair market value. The appraiser shall be selected
by the City Manager or his /her designee.
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Developer agrees that the Property Fee for commercial
and institutional uses shall be Fifty -Seven Thousand
Dollars ($57,000.00) per acre adjusted annually
commencing January 1, 2007, and each January 1
thereafter by any increase in the value of commercial
properties in Ventura County as most recently
published by Data Quick (Annual Index) . In the event
there is a decrease in the Annual Index for any annual
indexing, the Property Fee shall remain at its then
current amount until such time as the next subsequent
annual indexing which results in an increase.
In the event the Annual Index referred to above in
this subsection is discontinued or revised, such
successor index with which it is replaced shall be
used in order to obtain substantially the same result
as would otherwise have been obtained if the Annual
Index had not been discontinued or revised.
Thirty -five (35) years after the Operative Date of
this Agreement, the City, at its sole discretion, may
require Developer to pay the Property Fee for all
remaining lots (whether or not part of a Tentative
Final Map) based on the total number of residential
lots /units and commercial and institutional acres
approved in Specific Plan 11. The Property Fee shall
be the amount most recently paid for residential and
commercial /institutional, respectively.
The Developer shall pay a Property Fee for the for
sale affordable units of two percent (2 %) of the
Affordable Sales Price. The Property Fee for the very
low income affordable rental units shall be two
percent (2 %) of the then current Affordable Sale Price
for the very low income for sale affordable housing
unit, and the Property Fee for the low in come
affordable rental units shall be two percent (2 %) of
the then applicable Affordable Sale Price for the low
income for sale affordable housing units. The
Affordable Sales Price shall be calculated using the
method prescribed in subsection 6.11 of this Agreement
whether or not any of the for sale affordable units
are still available for sale by the Developer.
6.20. 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
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that the fees it has agreed to pay pursuant to
subsections 6.3., 6.5., 6.9., 6.11., 6.12., 6.19., and
6.29. 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.
6.21. (Left Blank)
6.22. Developer agrees to comply with Section 15.40.150 of
the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual review
of this Agreement and further agrees that the annual
review shall include evaluation of its compliance with
the certified Final Program EIR and approved MMRP.
6.23. Developer shall construct the Moorpark College Freeway
Interchange and the four -lane collector road connecting
said Interchange to the Specific Plan site ( "Access
Road "), as identified in Specific Plan 11. To ensure
timely completion of said Interchange and Access Road,
Developer shall satisfy the following thresholds:
(a)Title to the lands necessary to construct the
Interchange and Access Road must be acquired by the
Developer prior to issuance of the first grading
permit for Specific Plan 11;
(b)The Interchange Project Study Report and Project
Report must be approved by Caltrans prior to
approval of the first final map on Specific Plan
11;
(c)The Interchange Encroachment Permit must be issued
by Caltrans prior to issuance of the 250th
residential building permit on Specific Plan 11;
(d)The Interchange and Access Road must be fully
funded and commence construction prior to issuance
of the 300th building permit on Specific Plan 11;
(e) The Interchange and Access Road must be completed
and operational prior to issuance of the 500th
building permit on Specific Plan 11; and
(f)Except as described herein as to PA -28 and PA -29,
no vegetation shall be removed in the Buildout Area
(Phases B and C) and no land shall be graded within
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the grading limits of the Buildout Area (Phases B
and C) until construction of said Interchange and
Access Road are: (i) fully permitted; (ii) fully
funded to ensure completion; (iii) at a point in
construction where completed and approved work
represents at least fifty percent (50 %) of the
budgeted construction costs; and (iv) not more than
twelve (12) months from expected completion, as
determined by the City Community Development
Director. This provision shall not apply to
vegetation removal or grading necessary for soils
testing or archeological resources testing. The
Interchange and Access Road must be fully complete
and accepted by the City and Caltrans. Vegetation
clearing and grading in PA -28 and PA -29 shall be
permitted when the Interchange and Access Road are
fully permitted and funded to ensure completion.
In the event the Developer is unable to acquire by
purchase the right -of -way necessary to construct the
Access Road, and if requested in writing by Developer
and limited to the City's legal authority, the City
shall proceed to acquire, at Developer's sole cost and
expense, easements or fee title to such land in which
Developer does not have title or interest in order to
allow construction of public improvements required of
Developer, including any land outside the City's
boundaries. The process shall generally follow
Government Code section 66457 et seq. and shall
include the obligation of Developer to enter into an
agreement with the City, guaranteed by cash deposits
and other security as the City may require, to pay all
City costs, including but not limited to, acquisition
of the interest, attorney fees, appraisal fees,
engineering fees, and City overhead expenses of
fifteen percent (15 %) on all out -of- pocket costs and
City staff costs. Nothing in this provision compels
the City to complete the eminent domain process if, in
the sole and unfettered judgment of the City,
condemnation of the access right -of -way is not in the
public interest. A decision by the City not to
complete the eminent domain process shall not relieve
the Developer from the requirement to construct the
Interchange and Access Road and does not constitute a
waiver of the offsite improvements, pursuant to
Government Code section 66457 et seq.
6.24. Developer shall provide to the Ventura County Fire
Protection District (Fire District) title, access and
all utilities for a 1.5 -acre net usable site (PA -23,
0 �• • 3
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unless modified as discussed below) , for a fire
station prior to issuance of the 501St building permit.
Alternately, the fire station may be located on a site
within the Community Park (PA -10) mutually agreeable
to the City and the Fire District. If the City and
Fire District cannot agree on such a site, the fire
station shall remain in Planning Area 23 (PA -23) . The
land shall be deed restricted in the form of a
covenant running with the land, as set forth in
Exhibit "A" attached hereto and incorporated herein,
to limit use of the land to a fire station, and the
covenant shall be recorded in the offices of the
County Recorder of the County of Ventura concurrently
with the deed transferring fee title to the Fire
Protection District.
Developer shall install traffic signal traffic pre-
emption control devises at the main intersection
directly in front of the fire station and at other
traffic signals within Specific Plan 11, as determined
by the City Engineer.
Developer shall pay to the Fire District the Fire
Impact Fee, plus the difference between (a) the total
cost to construct a fire station ($4,000,000, adjusted
by any change in the CPI) ; and (b) the total Fire
District Facility Fees paid or to be paid in Specific
Plan 11 (1,500 units at $232.51 = $348,765) and the
total property tax revenues generated to the Fire
District by Specific Plan 11 between project approval
by the Moorpark electorate and first property tax
payment date following the sale of the 500th unit.
Subject to a joint agreement with the Fire District,
the City agrees to consider financing the fire
station as defined above and the Fire Impact Fee
through a Community Facility District. If the City
does not include the referenced cost in a CFD, the
applicant agrees to pay fees on the first 500
market -rate homes sufficient to generate the
difference between (a) the total cost to construct a
fire station ($400,000, adjusted by any change in
the CPI); and (b) the total Fire District Facility
Fees paid or to be paid in Specific Plan 11 (1,500
units at $232.51 = $348,765) and the total property
tax revenues generated to the Fire District by
Specific Plan 11 between project approval by the
Moorpark electorate and first property tax payment
date following the sale of the 500th unit.
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U'3(11 11-;�
Developer acknowledges that the referenced Fire
Facility Fee could be increased or decreased in the
future and such calculation would be based on the
then applicable fee.
6.25. Developer agrees to provide the City with cash
deposits as the 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.
In the event a CFD is authorized, the Developer
agrees, to the extent permitted by law, to exclude the
nature preserve, school site, public park sites, fire
station site, the for sale affordable housing units,
and the affordable rental housing units from any CFD
assessments. In the event any of the aforementioned
lots or uses are assessed for any CFD, Developer
agrees to prepay such assessment.
Developer further agrees that the City may at its sole
discretion select the bond counsel, underwriter,
financial advisor, and any other professional service
provider the City deems necessary to process the
possible formation of a District and that said
District may include, at City Council's sole
discretion, one or more maintenance components such as
police services.
6.26. Developer agrees that any election to acquire property
by eminent domain shall be at the City's sole
discretion, and only after compliance with all legally
required procedures including but not limited to a
hearing on a proposed resolution of necessity.
6.27. Developer shall cooperate, and pay all direct,
indirect, and out -of- pocket costs, to process an
application for expansion of the City's Sphere of
Influence and annexation of the property encompassed by
Specific Plan 11 to the City of Moorpark. Said costs
may include but are not limited to attorney fees,
engineering fees, City staff costs, and City overhead
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expenses of fifteen percent (15 %) on all out of pocket
and professional service costs.
6.28. Developer shall use an interim construction access
route for Specific Plan 11 through the existing access
easement on the Waste Management Property at the east
end of Campus Park Drive, provided the following
conditions are satisfied:
(a)Access by heavy construction trucks shall be
limited to 500 trips per week with a maximum of 160
trips in any given day;
(b)Developer shall complete those Collins /Campus
Park /SR -118 improvements as defined in Exhibit " "
over which the City has full permit authority,
prior to issuance of the first grading permit for
onsite development. Developer agrees to complete
all Collins /Campus Park /SR -118 improvements as
defined in Exhibit 11 " prior to the issuance of
the first building permit;
(c)Heavy construction truck traffic shall be limited
to the hours between 8:00 a.m. and 4:00 p.m.,
Monday through Friday. No weekend or holiday heavy
construction truck traffic shall be permitted;
(d)Developer shall sweep Campus Park Drive between
Collins Drive and Campus Road on each day for which
there are more than 25 truck trips on Campus Park
Drive;
(e)Developer shall replace the rear windows of the
homes backing onto Campus Park Drive with new dual
paned windows;
(f)Trucks shall not queue on Campus Park Drive, or any
other public street;
(g)Developer
sufficient
conditions;
shall provide the City a deposit
to fund the monitoring of these
(h)Developer shall install wrought iron fencing and
block pilasters, and landscaping screening along
the west and north sides of College View Park,
along Collins Drive and Campus Park Drive. Such
wrought iron fencing shall be similar in design and
the same quality as the fencing installed in Tierra
Rejada Park and the landscape and fencing plans
0�005�
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including exact location shall be approved by the
Director of Community Development and Director of
Parks, Recreation, and Community Services.
Installation of the fencing and landscaping shall
occur prior to the issuance of the first grading
permit for the Property. Developer shall also
replace in kind, or in cash, as determined by City
in its sole discretion, all park improvements
removed as a result of the widening of Collins
Drive and Campus Park Drive required by the EIR
mitigation measures, Project Approvals, or
Subsequent Approvals; and
(i)Developer shall keep the pavement in the affected
portion of Campus Park Drive in good condition as
determined by the City Engineer at his /her sole
discretion during the time it is used as interim
construction access including but not limited to
pothole repair, crack seal, slurry seal, and
asphalt overlay. Within sixty (60) days of
termination of Developer's use of said road as
interim construction access, Developer shall
provide a minimum two inch rubberized asphalt
overlay of the street including any necessary
preparatory work including but not limited to crack
sealing, pavement fabric, remove and replace failed
areas, and grinding operations, or if as determined
by the City Engineer in his /her sole discretion and
based on reflective tests or similar evaluative
study, the street shall be reconstructed.
Failure to comply with the above conditions shall be
cause for the City to halt all construction activity
within the boundaries of Specific Plan 11, until such
time as the City is satisfied that plans are in place
to ensure such failure will not be repeated.
6.29. Developer agrees to pay to the City no later than thirty
(30) days after City Council action setting an election
for the voters to consider approval of this Agreement,
Fifty Thousand Dollars ($50,000.00) for the preparation
of a City -wide Parks Master Plan.
6.30. Developer agrees that the City will not approve any
tentative map for any portion of the Property until the
Applicant has executed a mitigation agreement with the
Moorpark Unified School District (MUSD) in substantial
conformity with provisions of the North Park Village
Memorandum of Understanding approved by the Moorpark
Unified School District on March 8, 2005.
U 003
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Developer further agrees that any land within the Project
area that is dedicated to MUSD, or any successor
district, shall be deed restricted in the form of a
covenant running with the land, as set forth in Exhibit
"C" attached hereto and incorporated herein, to limit use
of the land to public school facilities, kindergarten
through 12th grade, and the covenant shall be recorded in
the offices of the County Recorder of the County of
Ventura concurrently with the deed transferring fee title
to MUSD or a successor district.
6.31. Prior to the submittal of an application for any
subdivision, or any other development project or
entitlement application, Developer shall submit and gain
approval from City Council of an Implementation Plan to
specifically address the requirements for implementation,
phasing, financing, construction and responsibilities for
the maintenance of on- and off -site improvements,
facilities, and services including rough and final
grading plans for the Project, open space, parks, streets
and roads, trails, drainage, water, recycled water, and
wastewater treatment improvements required for
implementation of the Specific Plan development,
including the requirements required for each approved
phase of the Project. The Implementation Plan shall also
address the specific requirements to be completed and the
entity responsible for each item including the amount and
form of sureties to guarantee all required items as well
as the responsible entities. The approval of the
Implementation Plan and any amendments thereto shall be
at the City Council's sole discretion. Prior to sale or
any transfer of ownership of any portion of the Property
(except individual lots after construction of houses),
Developer shall seek City approval of an amendment to the
Implementation Plan to address the responsibilities of
each entity. Developer agrees to accept the
Implementation Plan as approved by the City and to
install the improvements as determined by the City and at
such times as deemed necessary by the City Council.
The design and construction of all improvements addressed
in the Implementation Plan shall be consistent with
standards, plans, and specifications as determined by the
City Council at its sole discretion. Developer shall pay
City's costs for plan check, inspection, and
administration of such processes including City overhead
and administrative costs.
U0 0 4)" -A41
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In addition to the general items referenced above, the
Implementation Plan shall include but not be limited to
the following:
1. A provision obligating the Developer for the long
term maintenance of public and private streets
within the Project and all off -site public streets
that are used by construction vehicles.
2. Construction of storm drain systems including
detention basins and compliance with all
applicable federal, state, and county regulations
including but not limited to NPDES.
3. Installation of utilities to all sites planned for
public uses including but not limited to domestic
and recycled water, sewer, storm drains, gas,
electric, telephone, cable television, and fiber
optics.
4. Construction of sidewalk on the north side of
Campus Park Drive between Delfen Street and
Collins Drive.
5. Installation of landscaping within a portion of
the existing sidewalk on the south side of Campus
Park Drive between College View Park and Beragan
Street.
6. Construction of a raised median on Campus Park
Drive between Delfen Street and Campus
Road /Beragan Street and landscaping in the median
on Campus Park Drive between Collins Drive and
Campus Road /Beragan Street.
7. Construction of raised landscape median on Collins
Drive from Campus Park Drive to its terminus with
"A" Street.
8. Determination on the funding mechanism for the
maintenance of items 5., 6., and 7. above.
9. Construction of the extension of Collins Drive
from University Drive (northeast location) to its
intersection with "A" Street including
construction of sidewalk and bike lanes on both
sides and landscaping on the northwest side.
10. Construction of a second southbound lane on
Collins Drive from Hearon Drive to Benwood Drive.
030
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11. Preparation of a Lake Management Plan with
provisions for construction, management,
maintenance, and public access for related public
facilities and including but not limited to docks,
boat rentals, trails and construction of a swim
lagoon as part of the lake with restrooms,
shower /changing facilities.
12. Installation of traffic signals or other traffic
control devices at:
A. "A" Street and Collins Drive (currently Campus
Road owned by VCCCD)
B. "E" Street and Collins Drive (currently Campus
Road owned by VCCCD)
C. University Drive (southwest location) and
Collins Drive
D. Hearon Drive and Collins Drive
E. Intersections within the Project
13. Transit Plan to serve the Project.
14. Schedule for dedication of sites for public uses
not specifically addressed in the Development
Agreement.
15. Provisions to address the potential for sales of
residential lots to other developers and
subsequent sales that do not include required RPD
provisions.
16. Location, improvement, ownership, and maintenance
of fire access roads.
17. Developer's maintenance obligation for on- and
off -site parkway, slope and median maintenance,
street lighting, private and public park
maintenance, storm drain systems including
detention basins, culverts, pipes, and compliance
with National Pollutant Discharge Elimination
System (NPDES) requirements of the Project,
private and public trails, private and public
streets, Nature Preserve, and public and private
open space areas, and all other properties planned
to be owned by a public entity or in some form of
common ownership.
City Council shall at its sole discretion
determine in addition to existing Citywide
0006 is G
-41-
maintenance districts for parks, street lighting
and median, slope and parkway landscaping, what
additional maintenance districts the Project shall
be subject to and for what purposes. The City
Council shall also determine at its sole
discretion what maintenance responsibilities shall
be assigned to one or more property owner
associations.
18. Prepare schedule for payment of costs by Developer
to City for managing and implementing the MMRP
during the build out of the Project.
19. Elimination of all oil drilling, pumping and
extraction rights and easements, and all other
mineral rights from the Nature Preserve (PA27).
6.32. In addition to fees specifically mentioned in this
Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the
rate and amount in effect at the time the fee is
required to be paid. Said fees include but are not
limited to Library Facilities Fees, Police Facilities
Fees, Fire Facilities Fees, entitlement processing
fees, and plan check and permit fees for buildings and
public improvements. Developer further agrees that
unless specifically exempted by this Agreement, it is
subject to all fees imposed by City at the operative
date of this Agreement and such future fees imposed as
determined by City in its sole discretion so long as
said fee is imposed on similarly situated properties.
6.33. Developer agrees at its sole cost to install traffic
signals at any intersection within the Project as
determined by the City in its sole discretion. Final
design, plans, and specifications shall be as approved
by the City Council. Developer shall also pay City's
costs for plan check and inspection plus City
administrative costs.
6.34. Developer shall construct public streets adjacent to
school and park sites as depicted in the Specific Plan
regardless of whether said streets are designated as
local or collector streets for a length and to a
standard that includes a curb -to -curb width of between
48 feet and 60 feet as determined at City's sole and
unfettered discretion in order to provide street
parking, bike lanes, and turn lanes in addition to at
least two (2) travel lanes and necessary transitions.
�r-
�
00�ty,,*.
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6.35. Developer agrees to pay all property taxes (regular
and supplemental), special assessments, CFD
assessments and all other components of its property
tax bills on or prior to the dates specified in the
statements provided to it by the Ventura County Tax
Collector.
6.36. All public streets shall be constructed in a manner to
provide a 50 -year life as determined by the City
Engineer and the final one and one -half inches (1�11)
of pavement shall consist of rubberized asphalt.
6.37. Prior to issuance of the first grading permit for the
Property, pay City $ as a contribution for
the required updates to the General Plan Elements
necessitated by the approval of Specific Plan No. 11.
6.38. Developer agrees that in the event the cable
television services or their equivalent are provided
to the Project under collective arrangement or any
collective means other than by a City Cable Franchisee
(including, but not limited to, programming provided
over a wireless or satellite system contained within
the Project), the responsible Developer or successor
entity shall pay monthly to City an access fee of five
percent (5 %) of gross revenue generated by the
provision of those services, or the highest franchise
fee required from any City Cable Franchisee, whichever
is greater. "Gross revenue" is as defined in Chapter
5.06 of the Moorpark Municipal Code and any successor
amendment or supplementary provision thereto.
Developer further agrees that in the event cable
television services or their equivalent are provided
to the Project by any means other than by a City Cable
Franchisee, that the City's government channel shall
be available to all units as part of any such service
on the same basis as if the Project was served by a
City Cable Franchisee. Developer also agrees to add
this language to any Regulatory Amendment as part of
the sale of any revenue bonds issued by the City for
this Project or to any other agreement affecting this
Property if requested by the City.
6.39. Developer agrees to reimburse City for all costs to
maintain "A" Street until such time as it receives
occupancy of the 1101St dwelling unit. All maintenance
shall be at City's sole discretion, and Developer
agrees to pay direct costs including labor and
materials, City staff costs, and fifteen percent (15 %)
City overhead on all costs, and shall make such
-43-
payments within thirty (30) days of receiving an
invoice from the City. Maintenance costs shall
include but not be limited to pavement, signs,
pavement markings, and traffic control devices
including traffic signals. This is in addition to any
obligations Developer may have as a result of using
"A" Street as construction access to the Property.
6.40. Developer agrees that recycled water shall be
available to the Project prior to issuance of the 501St
building permit for the Project.
6.41. Developer agrees that the Helispot and Observatory
uses referenced in the Specific Plan as potential uses
in the Nature Preserve (PA 27) may be permitted by
City with limitations subject to a License Agreement
by the Moorpark City Council at its sole discretion.
Developer further agrees that the water storage
facilities shown in the Nature Preserve (PA 27) of the
Specific Plan will be permitted by the City subject to
certain deed restrictions and other conditions as
mutually determined by City and Ventura County
Waterworks District No. 1 to insure consistency with
the MMRP.
7. City Agreements.
7.1. The 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 Property and shall use overtime and
independent contractors whenever possible. Developer
shall assume any risk related to, and shall pay the
additional costs incurred by the City for, the
expedited and parallel processing.
7.2. If requested in writing by Developer and limited to the
City's legal authority, the 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 the
City's legal boundaries. The process shall generally
follow Government Code Section 66457 et seq. and shall
include the obligation of Developer to enter into an
agreement with the City, guaranteed by cash deposits
and other security as the City may require, to pay all
City costs, including but not limited to, acquisition
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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 the 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 all tentative map conditions,
Project Approvals and this Agreement 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 consistent with Specific Plan 11. 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. The City agrees that whenever possible as determined by
the City in its sole discretion to process concurrently
all land use entitlements for the Property so long as
said entitlements are deemed complete.
7.5. The City agrees that the land and improvements 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. The 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 6.25 of this Agreement, the City shall
commence proceedings to form a Mello -Roos Community
Facilities District ( "District ") and to incur bonded
indebtedness in an amount determined by the City
Council at its sole and unfettered discretion, to
finance all or portions of the public facilities,
infrastructure and services that are required by
Specific Plan 11 and that may be provided pursuant to
the Mello -Roos Community Facilities Act of 1982 (the
"Act "), including, but not limited to public utilities
(and those within private roads), acquisition of the
Nature Preserve and public park land, City and special
district facility fees, fire station construction and
construction of the Moorpark College Freeway
Interchange and Access Road; provided, however, the
City Council, in its sole and unfettered discretion,
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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 Specific Plan 11 to the
extent permitted by the Act as determined by bond
counsel for the District's bond indebtedness financing.
The 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. The
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.
In the event a CFD is authorized, the City agrees, to
the extent permitted by law, to exclude the nature
preserve, school site, public park sites, fire station
site, the for sale affordable housing units, and the
affordable rental housing units from any CFD
assessments.
7.7. The City agrees to appoint an affordable housing staff
person to oversee implementation of the affordable
housing requirements for Specific Plan 11 required
herein for the duration such units are required to be
maintained as affordable consistent with the
provisions of subsection 6.11 of this Agreement.
7.8. The 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.
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7.9. City agrees to grant to the Ventura County Waterworks
District No. 1 (District) an easement, license, or
deed with a reversionary clause to City (in the event
the land as deeded is not used for the specified
purposes) one or more sites within the Nature Preserve
(PA 27) as City and District may mutually agree at
locations as generally described in the Project
Approvals.
7.10. City agrees that the helispot and observatory uses
referenced as potential uses within PA 27 of the
Specific Plan may be permitted subject to a License
Agreement between the City and Ventura County Fire
Protection District and Ventura County Community
College District, respectively.
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 the City
Council.
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 the City or any
successor thereof then in effect. The failure of the City to
conduct any such annual review shall not, in any manner,
constitute a breach of this Agreement by the 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, the 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; (f) damage to
work in progress by reason of fire, flood, earthquake or other
casualty; (g) failure, delay or inability of the City to
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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; (h) delay caused by a restriction imposed or
mandated by a governmental entity other than the City; or (i)
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.
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 the City; or willfully violates any
order, ruling or decision of any regulatory or
judicial body having jurisdiction over the
Property or the Project, provided that Developer
may contest any such order, ruling or decision by
appropriate proceedings conducted in good faith,
in which event no breach of this Agreement shall
be deemed to have occurred unless and until there
is a final adjudication adverse to Developer; or
(b) fails to make any payments required under this
Agreement; or
(c) materially breaches any of the provisions of the
Agreement.
11.2. Default by the City. The 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
Q 01 G3
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 the City
shall be injunctive relief and /or specific performance.
The remedies for breach of the Agreement by Developer
shall be injunctive relief and /or specific performance.
In addition, if the breach is of subsections 6.9, 6.10,
6.11, 6.12, 6.14, 6.15, 6.18, 6.19, 6.20, 6.23, 6.24,
6.28, 6.31, and 6.35 or subsection 6.36 of this
Agreement, the 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
the 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 the City gives
notice to Developer of a breach, the 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 the
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.
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Each Financier that has given prior notice to the City
pursuant to this section shall have the right, at its option
and insofar as the rights of the City are concerned, to cure
any such breach within fifteen (15) days after the receipt of
the notice from the 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 the City of
its intention to cure and commences the cure within fifteen
(15) days after receipt of the notice from the City and
thereafter diligently prosecutes the same to completion. The
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 the City and the City
may deliver written notice to Developer requesting that such
Party certify in writing that, to the knowledge of the
certifying Party, that (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. The 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 the 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 the 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.
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15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Chapter 15.40 of the Moorpark Municipal
Code or any successor thereof then in effect, this Agreement
may be amended or terminated, in whole or in part, by mutual
consent of the City and the affected Developer.
16.
17.
HE
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.
Indemnification. Developer shall indemnify, defend with
counsel approved by the City, and hold harmless the City and
its officers, employees and agents from and against any and
all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or
resulting in any way from, Developer's performance pursuant to
this Agreement.
Developer shall indemnify, defend with counsel approved by the
City, and hold harmless the 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.
Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
Effective Date. This Agreement shall become
development
annexation
Date ") .
agreement upon the effective
of the Property into the City
effective as a
date of the
( "the Effective
19. Term. The term of this Agreement shall begin upon the
Effective Date, and shall remain in full force and effect for
a term of thirty -five (35) years or issuance of the final
inspection approval for the 1500th market rate unit ( "Term "),
whichever occurs last unless said term is amended or this
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
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obligation arising independently from such Project Approval or
Subsequent Approval.
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document reasonably
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
received when personally delivered or upon the third (3rd) day
after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the
Parties at the addresses set forth in Exhibit 111" attached
hereto and incorporated herein.
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof, and
all prior agreements or understandings, oral or written, are
hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of any of
the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
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ventures or any other association of any kind or nature
between the 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 the
City within the period required by Chapter 15.40 of the
Moorpark Municipal Code or any successor thereof then in
effect.
27. Cooperation Between the 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
Improvement Plan be found in conflict with any provisions of
this Agreement, or any provision of the Project Approvals or
Subsequent Approvals, the provisions of the Improvement Plan
shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Attorneys' Fees. In the event any action, suit or proceeding
is brought for the enforcement or declaration of any right or
obligation pursuant to, or as a result of any alleged breach
of, this Agreement, the prevailing Party shall be entitled to
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its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such
action, suit or proceeding shall include an award thereof.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
IN WITNESS WHEREOF, North Park Village, L.P., and the City of
Moorpark have executed this Development Agreement on the date first
above written.
OWNER /DEVELOPER
North Park Village, L.P.
Kim John Kilkenny
Authorized Agent
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CITY OF MOORPARK
Patrick Hunter
Mayor
00(1144311 (1 -J3
EXHIBIT 111"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
North Park Village, L.P.
610 West Ash Street, Suite 1500
San Diego, CA 92101
Attn: Kim John Kilkenny
S: \City Manager \Everyone \Agreements \North Park Dev Agr 04.27.2005.doc
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