HomeMy WebLinkAboutAGENDA REPORT 2005 0601 CC REG ITEM 08CNOTICE OF CONTINUANCE OF CLOSED PUBLIC HEARING
A duly noticed closed public hearing regarding:
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.
was held on June 1, 2005, at which time the City Council continued
the closed public hearing to the City Council meeting to be held on
June 15, 2005, at 7:00 p.m., in the Community Center located at 799
Moorpark Avenue, Moorpark, California.
Dated: June 2, 2005.
Maureen Benson, Deputy City Clerk
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss
CITY OF MOORPARK )
AFFIDAVIT OF POSTING
I, Maureen Benson, declare as follows:
That I am the Deputy City Clerk of the City of Moorpark and that a
Notice of Continuance of Closed Public Hearing regarding:
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.
continued from June 1, 2005, to June 15, 2005, was posted on June
2, 2005, at a conspicuous location near the place of the meeting:
Moorpark Community Center
799 Moorpark Avenue
Moorpark, California
I declare under penalty of perjury that the foregoing is true and
correct.
Executed on June 2, 2005.
Maureen Benson
Deputy City Clerk
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: The Honorable City Council
FROM: Steven Kueny, City Manager J
DATE: May 25, 2005 (CC Meeting of 6/1/2005)
ITEM I.C.
CITY OF MOORPARK, CALIFORNIA
City Council Meeting
of al ear
ACTION: �►� -„,.L. / ..�e.,l
BY: .�
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
On May 10, 2005, the City Council referred the draft Development
Agreement between the City and North Park Village, LP to the
Planning Commission for a recommendation and directed staff to
set a Council hearing on this matter for June 1, 2005. The
Planning Commission held a public hearing at a special meeting
on May 23, 2005 to consider this draft Development Agreement.
After closing the hearing, the Planning Commission discussed the
draft Development Agreement and recommended approval, also
requesting that consideration be given to including arbitration
language in Section 32 of the Development Agreement (Attorneys,
Fees) . Copies of the staff report, draft Development Agreement
and Planning Commission Resolution No. PC- 2005 -477 are attached.
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close
the public hearing;
2. Direct staff as deemed appropriate.
Attachments:
1. Planning Commission Agenda Report for May 23, 2005
2. Proposed Development Agreement by and between the City of
Moorpark and North Park Village Limited Partnership
3. Planning Commission Resolution PC- 2005 -477
MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission
FROM:Barry K. Hogan, Community Development Director
By: David A. Bobardt, Planning Manager
LJY
DATE:May 20, 2005 (PC Meeting of 5/23/05)
SUBJECT: Consider Proposed Development Agreement Between North
Park village, Limited Partnership and City of Moorpark
Pertaining to the General Plan Amendment No. 2001 -05,
Specific Plan No. 2001 -01, and Zone Change No. 2001 -02
(North Park Village and Nature Preserve Specific Plan)
BACKGROUND
On April 6, 2004, the Planning Commission recommended to the City
Council approval of General Plan Amendment No. 2001 -05, Specific
Plan No. 2001 -01 (with revisions), and Zone Change No. 2001 -02 for
the North Park Village and Nature Preserve Specific Plan project,
located on 3,586.3 acres generally north of Moorpark College and the
SR -118 Freeway outside the current boundaries of the City of
Moorpark. Part of the project proposal involved a Development
Agreement between the City and the developer, which was negotiated
by a City Council Ad -Hoc Committee (Mayor Hunter and Mayor Pro Tem.
Harper). On May 10, 2005, the City Council considered a draft
Development Agreement and referred this draft Development Agreement
to the Planning Commission for a recommendation. A copy of the
draft Development Agreement is attached.
DISCUSSION
Legal Requirements
The Government Code of the State of California provides for
Development Agreements between local agencies and developers to
improve certainty between both parties in the approval of
development projects and to provide for needed public improvements.
Development Agreements must specify the duration of the agreement,
the permitted uses of the property, the density or intensity of the
use, the maximum height and size of proposed buildings, and
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provisions for the reservation or dedication of land for public
purposes. Development Agreements may also include conditions,
terms, restrictions, and requirements for subsequent discretionary
actions, provided these don't prevent the development of the land
for the uses, density or intensity set forth in the agreement. The
agreement may provide for timing of construction as well as terms
and conditions for financing of necessary public facilities.
Approval of a Development Agreements is a legislative act, similar
to a zoning ordinance, requiring a public hearing by the Planning
Commission and City Council. Development Agreements must be found
consistent with the General Plan and any applicable Specific Plan.
Format
Due to the numerous issues unique to the North Park project because
of its size and required voter approval, the Agreement is presented
as a clean copy (not in legislative format to illustrate the changes
from the last Agreement approved by the Council as is usually done).
Sections 1 through 5, 8 through 17, and 20 through 33 include
relatively standard language similar to that used in all of the
City's Development Agreements, with minor changes as appropriate for
this project. Sections 6 and 7 list the agreements by the Developer
(North Park Village, LP) and the City respectively. Section 18 notes
that its effective date begins with annexation of the North Park
property to the City of Moorpark. Section 19 includes the effective
term of the Agreement, which for this project, due to its size, is
recommended for thirty -five years, or until the final market -rate
house is built, whichever comes last.
Relationship to General Plan and Specific Plan
A General Plan Amendment is requested as one of the project
applications. Part of this General Plan Amendment, already
considered by the Planning Commission, involves an extension of the
Moorpark City Urban Restriction Boundary (Moorpark CURB). Extension
of the Moorpark CURB for this project requires approval by Moorpark
voters. The Development Agreement includes language in Section 18
that it would become effective when the property is annexed to the
City. Approval of the annexation by the Ventura County Local Agency
Formation Commission (LAFCO) would first require approval by the
City of the General Plan Amendment, including the amendment to the
Moorpark CURB, along with approval of the Specific Plan. This
timing would ensure consistency of the Development Agreement with
the General Plan and Specific Plan.
The draft North Park Village and Nature Preserve Specific Plan is
currently being revised to address recommendations of the Planning
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Commission, Ad -Hoc Committee, and staff. These revisions are
reflected on the revised site plan (Attachment 2). It should be
noted that all of the Planning Commission recommended changes are
being incorporated into the Specific Plan with two exceptions.
First, the Planning Commission recommended that the neighborhood
center (Planning Area 49) be limited to 45,000 square feet of
commercial space. The plan shows a center with up to 70,000 square
feet of commercial space, consistent with the recommendation of the
Ad -Hoc Committee and staff to provide greater flexibility for future
commercial uses. This greater size, when combined with 90 senior
apartments, implies that the commercial center would increase from
5.0 acres to between 6.0 and 6.5 acres to accommodate both retail
and residential uses. The applicant has indicated this can be
accomplished by shifting residences in Planning Area 31, without
reducing the size of any parks or open space. Second, the Planning
Commission recommended that any mention of night lighting for the
Community Park be deferred to consideration at a future time and not
be addressed in the plan. The plan clarifies that night lighting of
the park is permissible, consistent with the recommendation of the
Ad -Hoc Committee and staff. Following are a summary of the changes
being made to the draft Specific Plan:
1. The size of the school site is being increased from 12 acres to
18 net usable acres and has switched locations with the park.
2. The size of the day care site is being reduced from 1.6 acres
to 0.6 acres to allow for an increased school size.
3. One water tank is being relocated to avoid impacts to the
vernal pool watershed.
4. The alignment of the new freeway interchange access road
through Waste Management property is being modified to avoid
encroachment of grading into the vernal pool watershed.
5. A second wildlife crossing is being added to the new freeway
interchange access road.
6. A canyon crossing for Phase A is being relocated to preserve
additional trees based on a re- evaluation of the number of
living oak trees in the impact area.
7. The middle and western entry cottages are being moved further
into the community; the park in PA -11 is being placed in front
of the entry cottage, and the western entry cottage has been
moved west to be less visible from public areas.
8. Planning Areas 37 and 38 are being consolidated into one
planning area (now called 37) to create a 9.3 -acre publicly
accessible lakeside park with a public swim area, restroom and
changing facilities, and a public boat rental operation.
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9. The Lakeside Neighborhood Center (former Planning Area 50, now
Planning Area 49) is being moved to the west of the Lakeside
Park (new Planning Area 37 as noted above).
10. Public parking for the Nature Park (Planning Area 11) is being
included as a permitted use.
11. The public trail system is being extended to completely loop
around the lake as presented to the Planning Commission by the
applicant on March 2, 2004, as Option B, with the lakeside
alternative on the north side of the lake, using paseos where
the trail is not immediately adjacent to the lake. In
addition, this lakeside trail is being connected to the
Planning Area 44 trail head.
12. Mixed uses (residential and commercial) are being included in
the neighborhood center (new Planning Area 49) to include 90
units of affordable housing.
13. Planning Area 9 is being reduced from 150 to 90 units of
affordable housing.
14. Exhibits or references to Planning Area 10 as a Youth Sports
Park are being eliminated, with reference only to a Community
Park site with 26 net usable acres. Night lighting is being
clarified as permissible at this park site.
15. Recreational improvements to be included in the public parks
(Planning Areas 10, 11, and 37 are being identified in the
Specific Plan consistent with the Development Agreement.
16. The Implementation Section of the Specific Plan will include
the establishment of a non - wasting endowment or landscape
management district for the ongoing management costs of the
Nature Preserve. The Land Use, Grading, and Circulation
section will identify Interpretive Facilities to be provided as
part of the Nature Preserve.
17. The 33 residential lots in the East Las Posas Groundwater Basin
outcrop area are being relocated to Planning Area 31.
18. The four -lane access road from the new freeway interchange is
being shown as a four -lane arterial with a 14 -foot wide median.
This road will connect directly to the northerly Moorpark
College parking lot.
19. A ranch -style home is being included as an architectural style
in the Design Guidelines.
20. Transit stop locations are being added as part of the
improvements to the community park and neighborhood commercial
areas.
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21. Construction traffic would access the site through the Waste
Management property until the interchange and access road are
available.
22. A roadway connection at the western property line is being
provided.
23. The two easternmost canyon crossings are being proposed as
bridge structures.
24. A multi -use trail to Oak Park from the terminus of the freeway
access road is being be provided if agreed to by the County of
Ventura (property owner).
25. The institutional designation for the water tank sites,
helispot, and observatory adjacent to and within the nature
preserve is being be removed and these uses will be listed as
conditionally - permitted uses within the Nature Preserve land
use designation.
26. The street name "Moorpark College Road" is being removed from
the plan with a name to be chosen through the standard City
practice.
In addition, the following corrections are being made to the
Specific Plan:
27. Text regarding the Hillside Management Ordinance open space
dedication requirements is being modified to reflect compliance
for sloped areas 20% to 35% and 35% to 50% and non - compliance
for slope areas in excess of 50% steepness.
28. Conveyance of the Nature Preserve to public ownership is being
modified for consistency with the draft Development Agreement.
Development Fees
A Nature Preserve maintenance fee of $100,000 per year is included
in Section 6.10 to provide for permanent management, maintenance,
and mitigation monitoring for the Nature Preserve. A one -time
Property Fee is included in the draft agreement (Item 6.19) that
would require the payment of $30,000 or 2% of the purchase price of
each house at the time of sale, whichever is greater. This is the
method staff believes would be the most dependable method of
recovering as much of the difference as possible between property
taxes that will actually be received by the City from the project
(about 3.4 percent of property taxes) and property taxes that would
be received if the project were already within the City's municipal
boundaries (about 7.4 percent of property taxes) . Section 6.29
includes a $50,000 contribution to offset costs for the City to
prepare a Parks Master Plan, and Section 6.37 includes a $100,000
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contribution to offset costs for the City to update its General Plan
Elements. Other fees are consistent with the fees used in
previously approved development agreements, adjusted for inflation
and the specific uses of this project.
Affordable Housing
The draft Development Agreement (Section 6.11) requires the
provision of 180 affordable housing units in addition to the 1,500
market -rate units, totaling 1,680 housing units. The applicant
previously proposed 150 affordable housing units. The 180 units
include ninety (90) single- family for -sale housing units of three
(3) to four (4) bedrooms and ninety (90) senior apartment units of
one (1) to two (2) bedrooms. This is above the ten percent
requirement of the City's Housing Element as the senior apartments
are smaller than what would normally be expected from a project like
this, and they are also attached units. Should the City Council
call for public hearings on the draft Development Agreement, the
notices would include language to acknowledge the additional
affordable housing units.
ENVIRONMENTAL DETERMINATION
An Environmental Impact Report has been prepared for the Specific
Plan project and is applicable to the Development Agreement for this
project. Copies of the Draft Environmental Impact Report, Revised
Draft Environmental Impact Report, Technical Appendices, Comments
and Responses to Comments have previously been transmitted to the
Planning Commission. On April 6, 2004, the Planning Commission
recommended to the City Council certification that this
Environmental Impact Report has been prepared in compliance with the
California Environmental Quality Act and that the Final
Environmental Impact Report reflects the independent judgment and
analysis of the City of Moorpark.
STAFF RECOMMENDATION
1. Open the public hearing, accept public testimony and close the
public hearing.
2. Adopt Resolution No. PC -2005- recommending to the City
Council approval of the Development Agreement with North Park
Village, Limited Partnership
Attachments:
1. Draft Development Agreement
2. Revised Specific Plan Map
3. Draft Resolution recommending approval to the City Council.
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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
05/10/05
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
North Park Village LP
for Specific Plan No. 2001 -01
(North Park)
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THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF THE EFFECTIVE DATE AS DEFINED HEREIN PURSUANT TO THE
REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into as of the Effective Date, as defined in Section 19
herein, 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, with a legal and
equitable interest in real property within the City generally
referred to as Specific Plan No. 2001 -01 (referred to hereinafter
individually as "Developer "). 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, the City Council
certified the Final Program Environmental Impact
Report, adopted findings in support thereof, approved
a Mitigation Monitoring and Reporting Program (MMRP) to
ensure compliance with the mitigation measures
contained in the Final Program EIR, and adopted a
Statement of Overriding Considerations (EIR). The EIR
constitutes the required CEQA review for General Plan
Amendment No. 2001 -05 ("GPA 2001 -05 "), Specific Plan
No. 2001 -01 (SP 2001 -01), as more specifically
described in Exhibit if " attached hereto and
incorporated herein, and Zone Change No. 2001 -02 ("ZC
2001 -0211) as well as for this Agreement.
1.3. GPA 2001 -05, SP 2001 -01, and ZC 2001 -02, (collectively
"the Project Approvals "; individually "a Project
Approval ") provide for development of the Specific Plan
as a master planned community and construction of
certain off -site improvements in connection therewith
(collectively "the Project ").
w.4. By this Agreement, the City desires to obtain the
binding agreement of Developer to develop the Specific
Plan 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.
I.S. By this
Agreement, Developer desires to obtain the
binding
agreement of the City to permit the development
of the
Specific Plan 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 CPA 2001 -05.
1.7. On May 23, 2005, the Planning Commission of the City
commenced a duly noticed public hearing on this
Agreement, and at the conclusion of the hearing
recommended approval of the Agreement.
1.8. On June 1, 2005, the City Council commenced a duly
noticed public hearing on this Agreement. Following
the conclusion of the hearing, the City Council adopted
Resolutions Nos. , which
called a special election to submit approval of an
Ordinance approving the Project Approvals and this
Agreement to the qualified voters of the City of
Moorpark ( "the Enabling Ordinance ").
1.9 On , the qualified voters of the City
of Moorpark, at a special election called therefore,
approved the Enabling Ordinance, which, among other
things, required the City and Developer to undertake
all necessary activities for the annexation of the
property within SP 2001 -01 into the City of Moorpark.
Said annexation was deemed complete and effective on
, 2006, and pursuant to section 19 herein,
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this Agreement is deemed Effective as of that_ same
date.
2. Property Subject To This Agreement. All of the real property
owned by the Developer and within the boundaries of SP 2001 -01
(approximately 3,535.2 acres) , shall be subject to this
Agreement ( "Property "). The Property may also be referred to
hereinafter as "the Project ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
terms "City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, 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, provided that all fees required to be paid in
connection with the development of such lot have been paid and
provided further that the payee of such fees had not paid such
fees under protest.
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 this Agreement, whether or not any reference
to this 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
-4- '" " ""'' "4
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.
3.3 Notwithstanding any other provision of this Agreement:
a. When any individual residential lot has been
finally subdivided and sold or leased to a member
of the public or any other ultimate user, and final
inspection has occurred for the building(s) on the
lot, or, in the event of commercial property, when
all allowed building for any lot has been built and
a certificate of occupancy issued therefore, that
lot and its owner shall have no further obligations
under and shall be released from this Agreement,
provided that all fees required to be paid in
connection with the development of such lot have
been paid and provided further that the payee of
such fees had not paid such fees under protest.
b. Upon the conveyance of any lot, parcel, or other
property, whether residential, commercial, or open
space, to a homeowners' association, property
owners' association, or public or quasi - public
entity, that lot, parcel, or property and its owner
shall have no further obligations under and shall
be released from this Agreement, provided that all
fees required to be paid in connection with the
development of such lot have been paid and provided
further that the payee of such fees had not paid
such fees under protest.
No formal action by the City is required to effect this
release, but, upon Owner's request, City shall sign an
estoppel certificate or other document to evidence the
release provided that no Developer is in default under
this Agreement.
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4. Development of the Property. The following provisions shall
govern the subdivision, development, and use of the Property.
Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by the Project Approvals and
this Agreement.
4.2. Development Standards. All design and development
standards, including but not limited to density or
intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are
set forth in the Project Approvals and this Agreement.
4.3. Building Standards. All construction on the Property
shall adhere to the Uniform Building Code, including
the Fire Resistive Design Manual, the National
Electrical Code, the Uniform Plumbing Code, the Uniform
Mechanical Code, the Uniform Housing Code, the Uniform
Code for the Abatement of Dangerous Buildings, the
Uniform Code for Building Conservation, 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.
4.4. Reservations and Dedications. All reservations and
dedications of land for public purposes that are
applicable to the Property shall be as set forth in the
Project Approvals, Subsequent 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
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City ordinance or resolution, or future adoption of any
ordinance, resolution, or other action, that purports
to limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property provided the Property is developed in
accordance with the Project Approvals and this
Agreement. Nothing in this 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. Developer Consent to 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
(excluding building 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 residential and commercial
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:
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(a) change any permitted or conditionally permitted
uses of the Property from that allowed by the Project
Approvals, and this Agreement;
(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 SP 2001 -01; or
(g) modify the land use from that permitted by the
Project Approvals and the City's General Plan Land Use
Element 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 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
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tentative map expires pursuant to this subsection. No
portion of the Property for which a final map or parcel
map has been recorded shall be reverted to acreage at
the initiative of 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. Consistent with Section 15
herein, Developer shall have the right, during the term
of this Agreement and 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 except as otherwise provided in Section 15
herein.
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.
�.` 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.
6. Developer Agreements.
6.1. Developer shall comply with (i) this Agreement; (ii)
the Project Approvals; (iii) all Subsequent Approvals
for which it was the applicant or a successor in
interest to the applicant; and (iv) the MMRP and any
subsequent or supplemental actions.
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 Effective 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
shall be determined by using the information provided
«�CC�3
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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 SP 2001 -01, 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
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.
v.5. As a condition of issuance of a building permit for
each residential and commercial use within the
boundaries of SP 2001 -01, 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, SP
2001 -01, and EIR.
6.7. Within the boundaries of the Property, Developer shall
dedicate, at its sole cost and expense, the approximate
thirty -nine (39) acres of park land to the City as
shown as public parks in SP 2001 -01 for PA -10 and PA -37
and approximately four and one -half (4 -1/2) acres for a
nature park as shown in SP 2001 -01 for PA -11. At its
sole cost and expense, but subject to the limitations
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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 and outfield chain link
fencing, fenced dugouts with concrete floors,
solid roof, 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 the 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
(0
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Recreation Center and the gymnasium shall be
designed to accommodate two (2) volleyball courts
that meet CIF regulation dimensions;
L. Village Stage; 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, rough and final 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
fifteen percent (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
January 1, 2007 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 CPT 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.
In the event the Price Index referred to above in this
subsection is discontinued or revised, such successor
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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 as depicted in SP
2001 -01 shall be two percent (20) 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 Community Park site (PA -10) shall be dedicated to
the City improved and available (open) to the public
prior to the occupancy of the 501St market -rate
dwelling unit within the boundaries of SP 2001 -01. 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 irrevocably offered for dedication to the City
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upon approval of the first. final map in which the park_
site is located.
The lakefront park (PA -37) site shall be dedicated in
fee to the City, improved and available to the public
the earlier of (i) occupancy of the 801st market -rate
dwelling unit or (2) completion of the recreation lake.
The park site shall be irrevocably offered for
dedication to the City upon approval of the first final
map in Phase B of SP 2001 -01.
The Nature Park (PA -11) shall be dedicated in fee,
improved, and available and open to the public, as
determined by the City Council at its sole discretion.
The park site shall be irrevocably offered for
dedication to the City upon the approval of the first
final map for the Project.
The recreation (PA -48) lake shall be completed and open
to the public prior to the occupancy of the 801St
market -rate dwelling unit.
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
r-% � •. �
said building to be used for park improvements at the
City Council's sole discretion. Commencing on January
1, 2007, 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, 2007, 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.
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 (12) 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 Developer shall give
written notice to the City of its intention to commence
construction of the park improvements 90 days prior to
commencing construction at each site. If the City does
not notify the Developer in writing of its intention to
collect Park Improvement Costs in cash in lieu of
actual construction of the park improvements within 30
business days of receipt of the 90 day notice, the
City's right to this option is waived.
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
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another location within the City. Such decision bsr the
City shall be made within one hundred eighty (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 or commercial 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 lots have been created by a
subdivision.
Prior to approval of the first final tract map for SP
2001 -01 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 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
ns 'r> .. 14 4
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' associations 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) The Nature Preserve area (PA -27) consisting of
approximately 2,121 acres as depicted in SP 2001-
01 shall be dedicated or granted by deed in fee
simple interest to the City. Title to one -third
(approximately 708 acres) of the Nature Preserve
shall be irrevocably dedicated as directed by the
City upon the issuance of the first grading
permit in each of the three SP 2001 -01 phases.
The City shall determine the preserve land so
dedicated with each phase. The Developer shall
grant to the City a license permitting public
access to the trail system depicted in SP 2001 -01
as a condition of the first grading permit for
any portion of the Nature Preserve not yet
conveyed to the City. Ten years after the
issuance of the first grading permit for the
Project the applicant shall grant to the City the
entire Nature Preserve as depicted in SP 2001 -01.
(b) Concurrent with City acceptance of fee title,
Developer (and at City's sole discretion, the
Homeowners' Association (HOA) 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
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purposes of permanent management, maintenance,
and mitigation monitoring for the Nature
Preserve. On the effective date of this
Agreement, the amount of the Nature Preserve
Maintenance Fee shall be One Hundred Thousand
Dollars ($100,000.00) per year. The Nature
Preserve Maintenance Fee management annual
payments shall be proportionately adjusted to
reflect the proportion of the preserve actually
dedicated. 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 beginning on the first
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.
(c) Concurrently with recordation of the first final
map for each phase of SP 2001 -01, Developer
agrees to grant, in a form acceptable to City, a
conservation easement to retain as shown in SP
2001 -01, those planning areas designated as open
space within each phase in a predominantly open
space condition consistent with Civil Code
Section 815 et sec., except for intended uses as
shown in the Specific Plan and as provided for in
this Agreement.
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(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 deed or conservation easements. However, an
oil transmission line shall be permitted to
service existing oil wells outside of the
Property. The transmission line shall be located
in public and private streets within the
easternmost development footprint connecting the
off -site wells to the existing storage tank
facility generally located in PA -45 as generally
depicted in the Exhibit "
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 yards, twenty (20) feet for
front yards, and sideyards shall be 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
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
��� ^ � A
V `✓ V rs 1 1
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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 substantially
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.
The actual initial purchase price (Affordable Sales
Price) paid by a qualified buyer, market value, buyer
eligibility, resale restrictions, equity share, and
0
-22-
second trust deed provisions, and any other items
determined necessary by the City will be approved by
the City Council consistent with the provisions in
this Agreement and 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 actions 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 SP
2001 -01, 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,
Developer shall deposit $120.00 for each dollar or
portion thereof of the monthly HOA fees that are in
,.N," — r.
-23- 0 .. -*J
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
insurance, property tax rate of 1.25 %, based on
Affordable Sales Price, homeowners, association dues
0 V 1
-24- ;v �:,,.... .
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.
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 7/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
Initial Purchase Price, homeowners' association dues
-25-
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
this subsection is discontinued or revised, such
-26- - �.w d
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.
In addition to the aforementioned closing costs, as
part of the sale of each for -sale affordable housing
unit, Developer also agrees to pay City three percent
(3°s) of the then applicable Affordable Sales Price
(Processing Fee) to pay City for City staff time,
contract services, out -of- pocket costs, and related
costs for the services necessary to process the
Affordability Documents and to qualify eligible
buyers. Developer further agrees that this Processing
Fee shall be paid to City at Developer's initial sale
of each for -sale affordable housing unit whether it is
sold to a qualified buyer selected by the City or the
City in -lieu of a qualified buyer as determined by the
City at its sole discretion.
Prior to approval of the first residential occupancy
in SP 2001 -01, 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 SP 2001 -01. 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)..
(b) Payment of all required City fees for processing
of applications for (a), above, consistent with
-27-
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.
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. The 90 for -sale
affordable housing units shall have all received final
inspection approval prior to the issuance of the 501St
market -rate building permit.
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
-28-
(500 of median income) and 54 units at low income (500
of median income). The ninety (90) residential rental
units shall be referred to as affordable rental units
and shall be located in PA -49 of SP 2001 -01. The
affordable rental units shall consist of twenty (20)
two bedroom and one (1) bath units with a minimum of
680 square feet and seventy (70) one (1) bedroom and
one (1) bath units with a minimum of 630 square feet
as follows:
The method of selecting eligible tenants, tenant
eligibility requirements including minimum age
restrictions, 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 set
forth the minimum age requirements for tenants and
residents consistent with applicable state and
federal laws and 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 further agrees that the Plan and Affordable
Housing Agreement shall include minimum age of
tenants and other requirements so that both the 54
new low income and 36 new very low income units are
counted as meeting the City's goals in its Housing
Element as may be amended from time to time and the
goals in the Regional Housing Needs Allocation Plan
as may be amended from time to time.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
V n r „ - n
-29-
2 Bedroom
1 Bedroom
Total
Low
12
42
54
Very Low
8
28
36
Total
20
70
90
The method of selecting eligible tenants, tenant
eligibility requirements including minimum age
restrictions, 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 set
forth the minimum age requirements for tenants and
residents consistent with applicable state and
federal laws and 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 further agrees that the Plan and Affordable
Housing Agreement shall include minimum age of
tenants and other requirements so that both the 54
new low income and 36 new very low income units are
counted as meeting the City's goals in its Housing
Element as may be amended from time to time and the
goals in the Regional Housing Needs Allocation Plan
as may be amended from time to time.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
V n r „ - n
-29-
Housing Agreement, these provisions may be
incorporated into the Regulatory Agreement if revenue
bonds are issued by the City for this Project.
Construction of the 90 affordable rental units shall
be completed and available for occupancy prior to the
earlier of the issuance of the 1, 101st market -rate
unit building permit for the Project or the
completion of construction of 50% of the retail
center in PA -49.
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
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
V'., v
-30-
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 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
EIR for SP 2001 -01. The Air Quality Fee may be
expended by City in its sole discretion for reduction
of regional air pollution emissions and to mitigate
residual Project air quality impacts.
At the time the Fee is due, 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 and for -sale affordable housing 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.
-31- N "��
�....J ..
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 commercial uses, and affordable rental units, 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 commercial use and final inspection
for such affordable rental unit.
6.13. Developer hereby agrees that densities vested and
incentives and concessions received hereunder include
all densities available as density bonuses and all
incentives and concessions to which Developer is
entitled under the Moorpark Municipal Code and
Government Code Sections 65915 through 65917.5;
Developer shall not be entitled to further density
bonuses or incentives or concessions.
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,
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
0
-32-
defined in the Implementation Plan and Subsequent
Approvals.
5.15. Prior to issuance of the first grading permit for each
phase of grading as described in SP 2001 -01, 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. However,
an oil transmission line shall be permitted to service
existing oil wells located outside of the Property.
The transmission line shall be located in public and
private streets within the easternmost development
footprint connecting the off -site wells to the
existing storage tank facility generally located in
PA -45 as generally depicted in Exhibit 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 commercial 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 commercial 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
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 SP 2001 -01 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.
Upon acquisition by Developer such property shall be
included within the definition of Project and Property
as set forth herein and City may record this Agreement
against the title thereto.
-33- ...,�.J
�.la, 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 single - family detached for -sale
housing in Ventura County as 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 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.
••
2 . Two percent (2-0.) of the total final sales price of
the real property as improved (lot and all structures)
as reported to the Ventura County Assessor.
In the event the lot or dwelling unit, or both, are
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 appraised value will be
used as the final sales price for purposes of
calculating the applicable fee under 1 or 2 above.
The appraiser shall be selected by the City Manager or
his /her designee.
Developer agrees that the Property Fee for commercial
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
-34- 0 C 7
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.
The Property Fee for commercial uses shall be paid
prior to issuance of final occupancy by the City.
Thirty -three years after the Effective Date of this
Agreement, the City, at its sole discretion, may
require Developer to pay the Property Fee for all
remaining residential and commercial lots /uses,
whether or not they have been created as part of a
final map, based on the total number of residential
lots /units and commercial acres approved in SP 2001-
01. The Property Fee shall be the amount most
recently paid for residential lots /units and
commercial acres.
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 Sales
Price for the very low income for -sale affordable
housing unit, and the Property Fee for the low income
affordable rental units shall be two percent (2 %) of
the then applicable Affordable Sales 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.
The intent of this subsection is that the Property Fee
will be paid, whether the dwelling unit or land is
sold or leased, prior to occupancy. The Property Fee
may be expended by the City at its sole and unfettered
discretion.
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
-35-
() C C.7; S
or supplementary thereto. Developer further agrees
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.
6.21. On the Effective Date of this Agreement, Developer
shall pay City $20,000.00 (Administrative Fee) for the
City's cost to administer this Agreement. City shall
charge its staff time at then applicable hourly rates
for time spent on administering this Agreement. All
out of pocket costs including but not limited to
engineering, legal, and planning services shall be
charged at direct cost plus 15% for City overhead
cost. Upon City's written request and provision of
expenditures to date showing that at least 800 of the
Administrative Fee deposited with City has been
expended, Developer shall deposit an additional
$20,000.00 for this purpose. Developer's obligation
for payment of the Administrative Fee shall cease at
such time as Developer has paid the then applicable
Condition Compliance Fee for 500 residential units.
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 EIR and approved MMRP.
6.23. Developer shall construct the Freeway Interchange and
the four -lane arterial street connecting said
Interchange to the Property ( "Access Road "), as
identified in SP 2001 -01. To ensure timely completion
of the Freeway 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 SP 2001 -01;
(b) The Freeway Interchange Project Study Report and
Project Report must be approved by Caltrans prior
to approval of the first final map on SP 2001 -01;
0 ro�
-36-
±::^)The Freeway Interchange Encroachment Permit must be
issued by Caltrans prior to issuance of the 250th
residential building permit on SP 2001 -01;
(d.) The Freeway Interchange and Access Road must be
fully funded and construction have commenced prior
to issuance of the 300th building permit on SP
2001 -01;
(e) The Freeway Interchange and Access Road must be
completed and operational prior to issuance of the
501st residential building permit on SP 2001 -01;
and
(f) Except as described herein as to PA -28 and PA -29,
no vegetation shall be removed in Phases B and C of
SP 2001 -01 and no land shall be graded within the
grading limits of Phases B and C of SP 2001 -01
until construction of the Freeway 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 (50o) 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.
vegetation clearing and grading in PA -28 and PA -29
shall be permitted consistent with this Agreement
and an early grading agreement when the Freeway
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
may 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, pursuant to the provisions of sections
6.26 and 7.2 herein.
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,
AX'► ��
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unless modified as discussed below) , for a fire
station prior to issuance of the 501st residential
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 PA -23. The land
shall be deed restricted in the form of a covenant
running with the land 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. The covenant
shall include an optional right of reversion or
remainder in the event of the failure of the grantee
to use the property for a fire station, which right
Developer agrees to convey to the City at City's
election.
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 SP 2001 -01, as determined by
the City Engineer.
Developer agrees that the City Council shall not
approve any tentative map for any portion of the
Property until Developer has entered into an agreement
(Fire Services Agreement) with the Ventura County Fire
Protection District (Fire District) and City that
includes but is not limited to Developer's obligations
to fund the construction of a fire station in the
Project (or another location within the City as
approved by City and Fire District) including the
potential for advance payment of Fire Facility Fees
and the Fire District's commitment to occupy and staff
said fire station.
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 Community Facilities District (CFD) as
referenced in subsection 7.6. of this Agreement, which
may be required to be paid prior to formation of a
CFD, or in the event a CFD 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
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overhead expenses of fifteen percent (J-5%) 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 taxed for any CFD, Developer agrees
to prepay such special taxes.
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 CFD.
6.26. Developer agrees that notwithstanding any other
provision of this Agreement, any decision 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. 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 Council, condemnation of any such property
is not in the public interest. A decision by the City
Council not to complete the eminent domain process
shall not relieve the Developer from any requirements
of the Project and does not constitute a waiver of the
offsite improvements, pursuant to Government Code
section 66457 et seq. Furthermore, any decision of
the City Council not to acquire property by eminent
domain shall not constitute a breach of this
Agreement.
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
0
-39-
SP 2001 -01 to the City of Moorpark. Said costs may
include but are not limited to attorney fees,
engineering fees, City staff costs, and City overhead
expenses of fifteen percent (150) on all out of pocket
and professional service costs.
6.28. Developer shall use an interim construction access
route for SP 2001 -01 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
Drive /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 Drive /SR -118 improvements
as defined in Exhibit " prior to the issuance of
the first building permit for the Project;
(c)Heavy construction truck traffic shall be limited
to the hours between 8:00 a.m. and 4:00 p.m.,
Monday through Friday and shall not be permitted on
weekends and City holidays;
(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 or as directed by the City Engineer;
(e)Developer shall make an offer to pay twenty
thousand dollars ($20,000.00) to the owners of each
of the nineteen (19) homes backing onto Campus Park
Drive and the two (2) homes on Kernvale Avenue at
the terminus of Delfen Street that directly face
Campus Park Drive (the 21 lots are identified by
APN in Exhibit 11 ") before the issuance of the
first grading permit for this Project. The
Developer will offer to pay to each of the
homeowners on the first anniversary of the initial
payment offer two thousand, five hundred dollars
($2, 500.00) . The Developer will offer to pay to
each of the homeowners ten thousand dollars
($10,000.00) on the third anniversary of the
initial payment offer, and each year thereafter
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until the freeway off -ramp is completed or
construction traffic on Campus Park Drive ceases.
(f)Trucks shall not queue on Campus Park Drive, or any
other public street; Developer shall provide a
staging area out of the line of sight from the
residents in Tract No. 2668.
(9) Developer shall provide the City a deposit
sufficient to fund the monitoring of these
conditions in amounts as determined by the City at
its sole discretion;
(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
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,
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 (2) 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.
0 C
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.' s nC
ij)Developer will use its best efforts to obtain
approval from the Moorpark Unified School District
to move the bus stop to an acceptable location
subject to the approval of the owners of lots
identified in Exhibit "
Failure to comply with the above conditions shall be
cause for the City to halt all construction activity
within the boundaries of SP 2001 -01, 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 calling and giving
notice of 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
Developer 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 MUSD on March
8, 2005.
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 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. The covenant shall include an
optional right of reversion or remainder in the event of
the failure of the grantee to use the property as set
forth herein, which right Developer agrees to convey to
the City at City's election.
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
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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,
type 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.
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. This
obligation may not extend longer than one year
after final inspection approval of the 1500th
market rate unit in the Project.
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.
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4. Construction of sidewalk on the north side of
Campus Park Drive between Del-fen 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.
B. 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.
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, and
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
OrNp r* ^ w
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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.
lam. 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
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. Include a 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 (PA -27).
However, an oil transmission line shall be
permitted to service existing oil wells outside of
the Property. The transmission line shall be
located in public and private streets within the
0
-45-
easternmost development footprint connecting the
off -site wells to the existing storage tank
facility generally located in PA -45 as generally
depicted in the Exhibit "
2�. Construction of a multi -use trail from the
southerly terminus of Freeway Interchange and
Access Road to Los Angeles Avenue in the vicinity
of Oak Park contingent on approval of the County
of Ventura Board of Supervisors (County). In the
event approval by the County is not obtained
within 360 calendar days of Developer's written
request, the City Council may at its sole
discretion require payment of an in lieu fee in an
amount as set forth in the Implementation Plan.
21. Determination on the necessity for a school
crossing guard and the amount to be paid by
Developer for this purpose.
22. City Council in its sole and unfettered discretion
shall determine whether or not to require an
access easement from one or more properties to the
west through the Property to connect to the Access
Road.
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 for each residential and
commercial lot or use. Said fees include but are not
limited to Library Facilities Fees, Police Facilities
Fees, Fire Facilities Fees, Arts in Public Places Fee,
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 Effective 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.
0/,,Ce . ,.
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65 .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.
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 fifty year (50 -year) life as determined by
the City Engineer and the final two inches (2 ") of
pavement shall consist of rubberized asphalt.
6.37. Prior to issuance of the first grading permit for the
Property, pay City $100,000.00 as a contribution for
the required updates to the General Plan Elements
necessitated by the approval of SP 2001 -01. Commencing
on January 1, 2007, and annually thereafter, this
amount 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.
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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 the Access Road until such time as it
receives occupancy of the 1,101st 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
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
the Access Road 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 as permitted uses within PA -27 of SP
2001 -01 will be permitted subject to a License
Agreement between the City and Ventura County Fire
" ^r"'A
-48- .,v,.,.
Protection District and Ventura County Commun t,,,,
College District, respectively.
Developer further agrees that the water storage
facilities uses referenced as a permitted use within
PA -27 of SP 2001 -01 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 EIR.
5.42 Developer agrees that after the Effective Date of the
Agreement, City may design and construct those
improvements defined in Exhibit " " (Collins /Campus
Park Drive /SR -118 improvements), items referenced in
subsection 6.31 of this Agreement, and any other items
subsequently included in the Implementation Plan in
advance of the date Developer is required to construct
said item so long as City has given Developer no less
than thirty (30) calendar days notice of its intent to
proceed with design and construction. Developer
further agrees that at its sole cost and expense, it
shall reimburse City's actual costs within thirty (30)
days of City Council approval of a notice of
completion. Design and construction costs shall
include but not be limited to attorneys, engineers,
other professional services, fees to other public
agencies, City staff time, City overhead expenses of
fifteen percent (15 %) on all out of pocket and
professional service costs including construction
contracts.
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. Such acquisition shall be
undertaken pursuant to the provisions of Section 6.26
herein, including but not limited to the City Council
having the right to not use eminent domain to acquire
property.
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 Subsequent Approvals,
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 SP 2001 -01. 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 at its sole discretion to process concurrently
all land use entitlements for the Property so long as
applications for 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 CFD and to incur bonded
indebtedness in amounts as determined by City Council
at its sole discretion to finance all or portions of
the public facilities, infrastructure and services that
are required by SP 2001 -01 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 Freeway
Interchange and Access Road; provided, however, the
City Council, in its sole and unfettered discretion,
may abandon establishment of the CFD upon the
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0 ��� . J
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 CFD may also include fees for
funding public facilities, infrastructure, and services
that are required by SP 2001 -01 to the extent permitted
by the Act as determined by bond counsel for the CFD'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 CFD. 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 CFD 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 special
taxes.
7.7. The City agrees to appoint an affordable housing staff
person to oversee implementation of the affordable
housing requirements for SP 2001 -01 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.
7.9. City agrees to grant to the Ventura County Waterworks
District No. 1 (District) an easement, license, or
0 n rrl...,
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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 PA -27 of SP 2001 -01
as City and District may mutually agree at locations
as generally described in the Project Approvals for
construction of water storage facilities.
7.10. City agrees that the Helispot and observatory uses
referenced as permitted uses within PA -27 of SP 2001-
01 will be permitted subject to a License Agreement
between the City and Ventura County Fire Protection
District and Ventura County Community College
District, respectively.
7.11 The City acknowledges that changes in market
conditions may result in changes to the Affordable
Sales Price, downpayment 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.
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 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 Com liance. 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 (including
any escalation or increase of such fees as contemplated
herein) , shall be excused during any period of "Excusable
Delay, 11 as hereinafter defined, provided that the Party
-52-
11
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
dewy 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; (di
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 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. Delays resulting
from CalTrans processing of any permits and approvals required
for the Project shall not constitute Excusable Delays.
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.
(d) fails to comply with the MMRP or the Conditions
of Approval for the Project Approvals and
Subsequent Approvals
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.
-53-
L1. 3. Content of Notice of
Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this subsection of the Agreement, the
nature of the alleged breach, and the manner in which
the breach may be satisfactorily cured. Every notice
shall include a period to cure, which period of time
shall not be less than ten (10) days from the date that
the notice is deemed received, provided if the
defaulting party cannot reasonably cure the breach
within the time set forth in the notice such party must
commence to cure the breach within such time limit and
diligently effect such cure thereafter. The notice
shall be deemed given on the date that it is personally
delivered or on the date that it is deposited in the
United States mail, in accordance with Section 20
hereof.
11.4. Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature, and
scope of the Project. The Parties also acknowledge
that it would not be feasible or possible to restore
the Property to its natural condition once
implementation of the Agreement has begun. Therefore,
the Parties agree that the remedies for breach of the
Agreement shall be limited to the remedies expressly
set forth in this subsection. Prior to pursuing the
remedies set forth herein, notice and an opportunity to
cure shall be provided pursuant to subsection 11.3
herein.
The remedies for breach of the Agreement by 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, 6.35, 6.36, 6.37, 6.38, 6.39, and 6.40 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
-54- 011_0.,"-7
Developer who violates any City ordinance or state
statute.
12. Mortgage Protection. At the same
notice to Developer of a breach, the
the notice to each holder of record
the portion of the Property in whi
interest ( "Financier "), provided tha
prior written notice of its name a
City and the notice makes specific r
The copies shall be sent by United S
certified, postage prepaid, return
shall be deemed, received upon th
deposit.
time that the City gives
City shall send a copy of
of any deed of trust on
ch Developer has a legal
t the Financier has given
an
mailing address to the
eference to this section.
tates mail, registered or
receipt requested, and
e third (3rd) day after
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) no Developer is 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
-55- ivy~
trust on the portion of the Property- in which that Developer
has a legal interest.
14. Administration of Agreement. Except as otherwise set forth
expressly herein, any discretion to be exercised or action
required to be undertaken by the "City" shall be exercised or
undertaken by the City Manager, unless City ordinance or state
or federal law vest such discretion in another individual or
body. 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.
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 Council and the affected Developer. No
amendment to a Project Approval or Subsequent 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. Notwithstanding
the foregoing, a vote of the Moorpark electorate shall be
required for any amendment to this Agreement or any Project
Approval if required by Section 5 of the Enabling Ordinance.
Further, to the extent that any amendment to this Agreement
involves a change in the duration of this Agreement, the
permitted uses of the property, the density or intensity of
use, the maximum height and size of proposed buildings, or any
required reservation or dedication of land for public
purposes, a public hearing before the planning commission, and
then the City Council shall be required prior to any approval.
16. 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.
-56- 0vC�,�v'�
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.
17. Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
18. Effective Date. This Agreement shall become operative and
effective as a development agreement upon the effective date
of the annexation of the Property into the City ( "the
Effective Date ").
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
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 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.
Entire Agreement This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof, and
all prior agreements or understandings, oral or written, are
hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined "by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the
purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in
entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of any of
the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be
construed as creating the relationship of partners, joint
ventures, or any other association of any kind or nature
between 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
-58- �a0 ^�A
0
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, the provision of this Agreement shall
prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California, and
the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit, or
proceeding related to, or arising from, this Agreement shall
be filed in the appropriate court having jurisdiction in the
County of Ventura.
31. Prevailing Wages. Developer understands that some of the
required public infrastructure contemplated by this Agreement
may require the payment of prevailing wages as required by
Labor Code section 1720 et. Seq. Developer agrees to comply
with the requirements therein, to the extent applicable, and
further agrees to defend and indemnify the City from any and
all claims, suits, or enforcement actions arising out of
Developer's failure to pay prevailing wages for any aspect of
the Project.
32. Attorneys' Fees. In the event any action, suit, or proceeding
is brought for the enforcement or declaration of any right or
obligation pursuant to, or as a result of any alleged breach
of, this Agreement, the prevailing Party shall be entitled to
its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such
action, suit or proceeding shall include an award thereof.
33. 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 tree Lily of
Moorpark have executed this Development Agreement on the date first
above written.
OWNER /DEVELOPER
NORTH PARK VILLAGE, L.P.
A California limited partnership
CITY OF MOORPARK
Patrick Hurter
Mayor
Kim John Kilkenny, its Attorney -in -Fact
0 --� '�' �-fki
EXHIBIT " If
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 0517 2005.DOC
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EXHIBIT "C"
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (th
and entered into as of the day of
by and between NORTH PARK VILLAGE, L.P.,
partnership (hereinafter referred to as
CITY OF MOORPARK ( "CITY").
RECITALS
e "Agreement ") is made
2005,
a California limited
"DEVELOPER ") , and the
WHEREAS, Developer has received City approval
Plan No. 2001 -01 (SP 2001 -01), which includes
single - family housing units to be sold to qualified
low income buyers, hereinafter referred to
affordable housing units, and ninety (90) apartment
rented to qualified low and very low income tenants;
WHEREAS, on _
into a Development
2001 -01; and
Agreement
of Specific
ninety (90)
low and very
as for -sale
units to be
and
the DEVELOPER and CITY entered
(Development Agreement) for SP
WHEREAS, in the Development Agreement, DEVELOPER agrees to
provide the ninety (90) for -sale affordable housing units to be
sold to qualified low and very low income buyers at sale prices
and terms and conditions as referenced in Sections 2. and 3. of
this Agreement and in the Development Agreement.
NOW, THEREFORE, IT IS AGREED by and between the DEVELOPER and
the CITY as follows:
SECTION 1. Selecting Eligible Buyers. The CITY shall
be responsible for marketing the affordable units, selecting and
qualifying eligible buyers for the units, and overseeing the
escrow processes to sell the affordable units to low income and
very low income households. In the event of termination of this
Agreement, Developer shall in any event comply with the
conditions of approval for any final map and Residential Planned
Development (RPD) permit for PA -9 of SP 2001 -01, and all terms
and conditions of the Development Agreement.
SECTION 2. Terms of Sale.
2.1 The terms and conditions of the sale of the for -
sale affordable housing units in SP 2001 -01 to qualified low and
very to w income buyers or City in lieu of said buyers shall be
consistent with the Development Agreement.
2.2 DEVELOPER shall satisfy all mechanic's,
laborer's, materialman's, supplier's, or vendor's liens and any
construction loan or other financing affecting any unit or lot
in SP 2001 -01 which has been designated for a for -sale
affordable housing unit, before the close of escrow for that
affordable unit.
2.3 DEVELOPER agrees if it sells any of the for -sale
affordable rousing units directly to a qualified low or very low
income buyer, per Section 2.1. above, all requirements of the
buyer, including, but not limited to, completion of a CITY
approved homebuyer education training workshop, and CITY
approved documents for the transaction, including a promissory
note, deed of trust, and resale restriction agreement and option
to purchase (the "Affordability Documents "), shall be included
as a requirement of the sale. The language of all such
documents shall be approved by CITY at its sole discretion.
2.4 The parties agree that prior to and upon the sale
of an affordable unit to a qualified buyer or CITY, CITY may at
its sole discretion take any actions and impose any conditions
on buyer eligibility and 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 an affordable
unit by DEVELOPER to a qualified buyer or CITY, CITY shall have
sole responsibility for approving any subsequent sale of that
housing unit and enforcing the Affordability Documents.
DEVELOPER further agrees that CITY has the sole discretion to
make all determinations on buyer eligibility including but not
limited to income and household size.
2.5 The CITY shall determine at its sole discretion
which of the affordable for -sale units within SP 2001 -01 will be
sold to the qualified low income households and the qualified
very low income households.
2.6 Developer agrees that
construction of the for -sale affordable
subject to subsequent City Council and
one or more entitlements including
subdivisions and RPD permits that will
approval that will be in addition
Development Agreement and this Agreement.
the development
housing units shall
City staff approval
but not limited
include conditions
to provisions of
and
be
of
to
of
the
2 n ��►'y
S:`City Manager \Everyone \AgreementsNNorth Park Purchase and Sale Agr 0516 2005 -wo leg format. DOC J `
SECTION 3. Conditions of Purchase and Sale. If a
qualified low or very low income buyer is identified by the CITY
prior to or at the time of completion of any one of the
affordable units, and by the date on which final inspection
approval is issued for said unit, DEVELOPER shall open escrow
for the sale of said unit for the same Affordable Sales Price
(as defined in the Development Agreement for SP 2001 -01) and
subject to Section 2. above, and shall enter escrow directly
with the buyer identified by CITY, and proceed to closing of
said escrow. If a qualified low or very low income buyer has
not been identified at the time DEVELOPER receives its final
inspection approval for and an affordable unit in SP 2001 -01,
CITY agrees to purchase the affordable unit required to be
provided by DEVELOPER for the amount and at the time specified
in the Development Agreement.
SECTION 4. Quality of Construction. DEVELOPER warrants
that the quality of materials and construction techniques of the
for -sale affordable housing units sold to the CITY (or to
qualified low or very low income buyers) shall in all manner be
similar to that of single family moderate priced units
constructed in City and subject to all conditions of approval
for any applicable RPD permits and final maps and shall meet all
Building Codes.
SECTION 5. Amenities and Warranties. DEVELOPER
acknowledges that the affordable units will not be occupied by
the CITY but, if purchased by the CITY, will be sold to
qualified low or very low income buyer(s) . DEVELOPER agrees to
provide the same amenities and home warranties associated with
the affordable units purchased by the CITY as the amenities and
home warranties associated with single family moderate priced
units constructed in the City. DEVELOPER declares that all such
warranties shall inure to the benefit of and be enforceable by
the ultimate occupants of the affordable units, and that all
warranties by subcontractors and suppliers shall inure to the
benefit of and be enforceable by such occupants. The CITY (or
qualified low or very low income buyers) shall have the same
choices of finish options as purchasers of other single family
moderate priced units constructed in the City and final walk -
through approval of condition of the unit before close of sale.
Options provided to CITY or buyer(s) of the for -sale affordable
housing units, shall include, but not be limited to, color and
style choices for carpeting and other floor coverings, counter
tops, roofing materials, exterior stucco and trim of any type,
fixtures, and other decorative items.
3 n
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SECTION h. Defense and Indemnity. DEVELOPER agrees to
indemnify, hold harmless and defend at its sole expense, with
counsel reasonably acceptable to CITY, any action brought
against it or CITY by a purchaser of a for -sale affordable
housing .,nit for any alleged construction defects or related
problems, or any action brought by any party to approve, extend
or renew any permit, related actions under CEQA, any subsequent
permits to implement /construct the Project and this Agreement.
DEVELOPER further agrees to reimburse CITY for any court costs
and /or attorneys' fees which CITY may be required by the court
to pay as a result of any such action. CITY may, at its sole
discretion, participate in the defense of any such action at
CITY's cost, but such participation shall not relieve DEVELOPER
of its obligation under this Section.
SECTION 7." Waiver. DEVELOPER hereby covenants not to
bring any action against CITY to (a) attack, review, set aside,
void, or otherwise annul this Agreement, in whole or in part, or
(b) recover any compensation or obtain any relief for any
injury, damage, loss, or deprivation of any right alleged to
have been sustained as a result of CITY's action on any matter
related to this Agreement.
SECTION 8.
following shall
DEVELOPER:
Defaults and Remedies
constitute an "Event of
Each of the
Default" by the
8.1.1 Failure by the DEVELOPER to duly perform,
comply with and observe any of the conditions, terms, or
covenants of any subsequent approval for the ninety (90)
affordable for -sale units, including but not limited to final
maps and RPD permits, this Agreement, or the Development
Agreement, if such failure remains uncured ten (10) days after
written notice of such failure from the CITY to the DEVELOPER in
the manner provided herein or, with respect to a default that
cannot be cured within ten (10) days, if the DEVELOPER fails to
commence such cure within such ten (10) day period or thereafter
fails to diligently and continuously proceed with such cure to
completion.
8.1.2 Any representation or warranty contained in
this Agreement or in any certificate or report submitted to the
CITY by DEVELOPER proves to have been incorrect in any material
respect when made.
8.1.3 A court having jurisdiction shall have made or
rendered a decree or order (a) adjudging DEVELOPER to be
4
S: \City Manager \Everyone \Agreements,North Park Purchase and Sale Agr 0516 2005 -wo leg format. DOC �y L �-•
bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of DEVELOPER or seeking any
arrangement on behalf of DEVELOPER under the bankruptcy law or
any other applicable debtor's relief law or statute of the
United States or of any state or other jurisdiction; (c)
appointing a receiver, trustee, liquidator, or assignee of the
DEVELOPER in bankruptcy or insolvency or for any of its
properties; or (d) directing the winding up or liquidation of
the DEVELOPER, providing, however, that any such decree or order
described in any of the foregoing subsections shall have
continued unstayed or undischarged for a period of ninety (90)
days.
8.1.4 The DEVELOPER shall have assigned its assets
for the benefit of its creditors or suffered a sequestration or
attachment or execution on any substantial part of its property,
unless the property so assigned, sequestered, attached, or
executed upon shall have been returned or released within ninety
(90) days after such event (unless a lesser time period is
permitted for cure hereunder) or prior to sale pursuant to such
sequestration, attachment, or execution. If the DEVELOPER is
diligently working to obtain a return or release of the property
and the CITY's interests hereunder are not imminently threatened
in the CITY's reasonable business judgment, then the CITY shall
not declare a default under this subsection.
8.1.5 The DEVELOPER shall have voluntarily suspended
its business or dissolved.
8.1.6 Should there occur any default declared by any
lender under any loan document or deed of trust relating to any
loan made in connection with the Project or property on which
Project is to be constructed, which loan is secured by a deed of
trust or other instrument of record.
8.2 Liens. DEVELOPER shall pay and promptly
discharge when due, at DEVELOPER's cost and expense, all liens,
encumbrances and charges upon the Project or the underlying
property, or any part thereof or interest therein (except the
lien of any mortgage, deed of trust or other recorded instrument
securing any construction or permanent financing for the
Project), provided that the existence of any mechanic's,
laborer's, materialman's, supplier's, or vendor's lien or right
thereto shall not constitute a violation of this Section if
payment is not yet due under the contract which is the
foundation thereof and if such contract does not postpone
payment for more than forty -five (45) days after the performance
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thereof. DEVELOPER shall have the -right to contest in good
faith the validity of any such lien, encumbrance or charge,
provided that within ten days after service of a stop notice or
ninety days after recording of a mechanic's lien, DEVELOPER
shall deposit with CITY a bond or other security reasonably
satisfactory to CITY in such amounts as CITY shall reasonably
require, but no more than the amount required to release the
lien under California law and provided further that DEVELOPER
shall thereafter diligently proceed to cause such lien,
encumbrance or charge to be removed and discharged, and shall,
in any event, cause such lien, encumbrance or charge to be
removed or discharged not later than sixty (60) days prior to
any foreclosure sale. If DEVELOPER shall fail either to remove
and discharge any such lien, encumbrance or charge or to deposit
security in accordance with the preceding sentence, if
applicable, then, in addition to any other right or remedy of
CITY, CITY may, but shall not be obligated to, discharge the
same, without inquiring into the validity of such lien,
encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due,
or by procuring the discharge of such lien, encumbrance or
charge by depositing in a court a bond or the amount or
otherwise giving security for such claim, in such manner as is
or may be prescribed by law. DEVELOPER shall, immediately upon
demand therefor by CITY, pay to CITY an amount equal to all
costs and expenses incurred by CITY in connection with the
exercise by CITY of the foregoing right to discharge any such
lien, encumbrance or charge. To the extent not paid, all costs
and expenses paid by the CITY shall be a lien on the Property
pursuant to Civil Code Section 2881.
8.3 Costs of Enforcement. If any Event of Default
occurs, CITY may employ an attorney or attorneys to protect its
rights hereunder. Subject to California Civil Code Section 1717
and statutes amendatory or supplementary thereto, DEVELOPER
promises to pay to CITY, on demand, the fees and expenses of
such attorneys and all other costs of enforcing the obligations
secured hereby including without limitation, recording fees,
receiver's fees and expenses, and all other expenses of whatever
kind or nature, incurred by CITY in connection with the
enforcement of the obligations secured hereby, whether or not
such enforcement includes the filing of a lawsuit.
8.4 Remedies Not Exclusive. CITY shall be entitled
to enforce payment and performance of any indebtedness or
obligation of DEVELOPER arising under this Agreement and to
exercise all rights and powers under this Agreement or any law
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now or hereafter in force, notwithstanding some or all of the
said indebtedness and obligations secured hereby may now or
hereafter be otherwise secured, whether by guaranty, mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither
the acceptance of this Agreement nor its enforcement by court
action shall prejudice or in any manner affect CITY's right to
realize upon or enforce any other security now or hereafter held
by CITY, it being agreed that CITY shall be entitled to enforce
this Agreement and any other security now or hereafter held by
CITY, as applicable, in such order and manner as CITY may in its
absolute discretion determine. No remedy herein conferred upon
or reserved to CITY is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given
hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Agreement to the
CITY may be exercised, concurrently or independently, from time
to time and as often as may be deemed expedient by the CITY, and
it may pursue inconsistent remedies.
8.5 Enforcement; Specific Performance. The CITY
shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the DEVELOPER to
perform its obligations and covenants under this Agreement or to
enjoin acts or things which may be unlawful or in violation of
the provisions hereof.
8.6 Right of Contest. The DEVELOPER shall have the
right to contest in good faith any claim, demand, levy, or
assessment the assertion of which would constitute an Event of
Default hereunder. Any such contest shall be prosecuted
diligently and in a manner unprejudicial to the CITY or the
rights of the CITY hereunder.
8.7 Action at Law; No Remedy Exclusive. The CITY may
take whatever action at law or in equity as may be necessary or
desirable to enforce performance and observance of any
obligation, agreement or covenant of the DEVELOPER under this
Agreement. No remedy herein conferred upon or reserved by the
CITY is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law, in equity or by
statute. No delay or omission to exercise any right or power
accruing upon any default shall impair any such right or power
or shall be construed to be a waiver of such right or power, but
any such right or power may be exercised from time to time and
SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg €ormat.DOC 0 ✓ V
as often as CITY may deem expedient. In order to entitle the
CITY to exercise any remedy reserved to it in this Agreement, it
shall not be necessary to give any notice, other than such
notice as may be herein expressly required or required by law to
be given.
8.8 Termination. The City's rights and remedies set
forth herein shall include as a cumulative remedy the right to
terminate this Agreement if an Event of Default is not cured,
pursuant to section 8.1 herein. Such termination shall, at a
minimum, require full compliance by the DEVELOPER with all terms
and conditions of the Development Agreement and conditions of
approval of any final maps or RPD permits applicable to the for -
sale affordable units.
SECTION 9. Warranty of Authorized Signatories. Each of
the signatories hereby warrants and represents that he or she is
competent and authorized to execute this Agreement on behalf of
the party for whom he or she purports to sign.
SECTION 10. Assignment. DEVELOPER agrees that CITY, at
CITY's sole discretion, may assign this Agreement to the
Redevelopment Agency of the City of Moorpark (AGENCY).
SECTION 11. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the Parties and their respective
successors, assigns, legal representatives, parent, subsidiary,
affiliated and related entities, officers, directors, principals,
agents, servants, employees, representatives, and all persons, firms,
associations and /or corporations connected with them, including,
without limitation, their insurers, sureties and /or attorneys.
(b) Attorneys' Fees. In the event that any action, suit or
other proceeding is instituted to remedy, prevent or obtain relief
from a breach of this Agreement, or arising out of a breach of this
Agreement, the prevailing party shall be entitled to recover
reasonable attorneys' fees and costs incurred in such action, suit or
other proceeding, including any and all appeals or petitions
therefrom.
(c) Severability. Should any part, term or provision of this
Agreement be declared or determined by any court to be illegal or
invalid, the validity of the remaining parts, terms or provisions
shall not be affected thereby and said illegal or invalid part, term
or provision shall be deemed not to be a part of this Agreement.
8
0
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(d) Assistance of Counsel. DEVELOPER and CITY acknowledge
that: (i) they have been represented by independent counsel in
connection with this Agreement; (ii) they have executed this
Agreement with the advice of such counsel; and (iii) this Agreement
is the result of negotiations between the Parties and the advice and
assistance of their respective counsel. Each of the Parties has
equally participated in the drafting and preparation: of this
Agreement, and it is the intention of the Parties that the
construction or interpretation of this Agreement shall be made
without reference to the Party who drafted any portion or particular
provision of this Agreement or the relative size and or bargaining
power of the Parties.
SECTION 12. Moratorium on Development. Nothing in this
Agreement shall prevent CITY, whether by the City Council or
through the initiative or referendum process, from adopting or
imposing a moratorium on the issuance or approval of tentative
or final maps, RPD permits, and building permits and on the
finalizing of building permits by means of a final inspection or
certificate of occupancy, provided that the moratorium is
adopted or imposed (i) on a City -wide basis to all substantially
similar types of development projects and properties with
similar land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage, including
without limitation a shortage of water, sewer treatment
capacity, electricity or natural gas.
SECTION 13. Waiver of Protest Rights. DEVELOPER agrees
that any fees and payments for the affordable for -sale units
shall be made without reservation, and Developer expressly
waives the right to payment of any such fees under protest
pursuant to California Government Code Section 66020 and
statutes amendatory or supplementary thereto, or any other
applicable state or federal law.
SECTION 14. Notices. All notices and other
communications which a party desires or is required to give
respecting this Agreement must be in writing addressed to the
recipient party at its address set forth beneath its signature
to this Agreement and must be given personally (including by
commercial messenger or courier) or by First Class United States
Mail, postage prepaid. Notices shall be deemed to have been
effectively given, if given personally, upon receipt (or upon
attempted delivery if receipt is refused) , and if mailed, three
(3) business days following deposit in the United States Mail.
A party may change its address for notices only by a notice
given in the foregoing manner.
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SECTION 15. Amendments and Waivers. No term or
provision of this Agreement can be amended or waived, either
orally or by a course of conduct, but only by an instrument in
writing signed by the party against whom enforcement of such
amendment or waiver is sought.
SECTION 16. Entire Agreement. This Agreement and the
Development Agreement for SP 2001 -01 constitute the entire
agreement and understanding of the parties with respect to its
subject matter and they supercede all prior and contemporaneous
agreements and understandings of the parties with respect to
that subject matter. Should any provision of this agreement be
in conflict with any provision of the Development Agreement, the
Development Agreement shall prevail.
SECTION 17. Headings and Attachments. The title of this
Agreement and the headings of its sections are for convenience
of reference only and are not to be referred to in interpreting
or construing this Agreement. However, all attachments and
exhibits to this Agreement, as well as the Recitals, are a part
of this Agreement.
SECTION 18. Governing Law and Interpretation. This
Agreement is to be governed by and construed in accordance with
the laws of the State of California. This Agreement is made,
entered into and executed in Ventura County, California, and any
action filed in any court for the interpretation, enforcement or
other action arising from any term, covenant or condition herein
shall be filed in Ventura County.
CITY:
CITY OF MOORPARK
By
Patrick Hunter
Mayor
Attest:
By
City Clerk
DEVELOPER:
NORTH PARK VILLAGE, L.P.
A California limited partnership,
Kim John Kilkenny,
its authorized representative
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S.Tity Manager `.Everyone`,AgreementsiNorth Park Purchase and Sale Agr 0516 2005 -wo leg format. DOC -
0
City of Moorpark North Park Village, L.P.
Address: 799 Moorpark Avenue 610 West Ash Street, Suite 1500
Moorpark, California 93021 San Diego, CA 92010
Attn: Kim John Kilkennv
11
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EXHIBIT "
Improvements to the Collins Drive /Campus Park Drive Intersection
and the Collins Drive /SR -118 Freeway Interchange
CITY PERMITS ONLY
CITY AND CALTRANS PERMITS
REQUIRED
Collins /Campus Park Intersection
Collins /Campus Park Intersection
• Add 2 "`; westbound left -turn
• Convert northbound right -turn
lane on Campus Park Drive at
lane on Collins Drive to a free
Collins Drive.
right -turn lane.
• Convert 2 R eastbound through
Collins /SR -118 westbound On /Off -Ramp
lane on Campus Park Drive to
right turn lane.
• Convert SR -118 Freeway
westbound off -ramp right -turn
• Modify traffic signal at
lane to a free right -turn lane.
Collins Drive /Campus Park Drive
Collins /SR -118 Eastbound On /Off -Ramp
to provide eastbound right -turn
green -arrow overlap with the
• signalize Collins Drive /SR -118
adjacent northbound left -turn
Freeway /Los Angeles Avenue
movement.
(Arroyo Drive) interchange.
• Convert westbound through lane
on Los Angeles Avenue (Arroyo
Drive) to shared through /second
right -turn lane
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RESOLUTION NO. PC- 2005 -477
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY
OF MOORPARK, CALIFORNIA, RECOMMENDING TO THE CITY
COUNCIL APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF MOORPARK AND NORTH PARK VILLAGE, L.P.
FOR GENERAL PLAN AMENDMENT NO. 2001 -05, SPECIFIC
PLAN NO. 2001 -01, AND ZONE CHANGE NO. 2001 -02, THE
NORTH PARK VILLAGE AND NATURE PRESERVE SPECIFIC
PLAN
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1,
Title 7 of the State Planning and Zoning Law provides that cities
may enter into contractual obligations known as Development
Agreements with persons having equitable interest in real property
for development of that property; and
WHEREAS, the owners of the land with an application for
General Plan Amendment No. 2001 -05, Specific Plan No. 2001 -01, and
Zone Change No. 2001 -02 have applied to the City of Moorpark to
seek a Development Agreement with the City pursuant to Chapter
15.40 of the Moorpark Municipal Code; and
WHEREAS, the Planning Commission of the City of Moorpark has
previously reviewed and considered the Environmental Impact Report,
General Plan Amendment, Specific Plan, and Zone Change requests and
recommended to the City Council approval of said requests; and
WHEREAS, the Environmental Impact Report prepared for General
Plan Amendment No. 2001 -05, Specific Plan No. 2001 -01, and Zone
Change No. 2001 -02 is applicable and sufficient environmental
documentation for the Development Agreement, since the Development
Agreement relates to providing for the financing and or
construction of various improvements and facilities relating to the
project area that have already been addressed by the Environmental
Impact Report for the project; and
WHEREAS, the City Council desires that the Planning Commission
evaluate and provide recommendations for revision, denial and /or
approval of a Development Agreement between the City and owners,
and has provided the Commission with true copies of the Development
Agreement; and
WHEREAS, a duly noticed public hearing was conducted by the
Planning Commission on May 23, 2005, to consider the Development
Agreement and to accept public testimony related thereto; and
CC ATTACHMENT 3
0
Resolution No. PC- 2005 -477
Page No. 2
WHEREAS, the Planning Commission has considered all points of
public testimony relevant to the Development Agreement and has
given careful consideration to the content of the Development
Agreement.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTATION: The potential
environmental impacts concerning this Development Agreement have
already been addressed by the Environmental Impact Report prepared
for the North Park Village and Nature Preserve Specific Plan
project (SCH No. 2002011114) and no additional environmental
documentation is necessary in that no new significant environmental
impacts, feasible project alternatives, or mitigation measures
considerably different from others previously analyzed have been
identified.
SECTION 2. CONSISTENCY WITH GENERAL PLAN AND ANY APPLICABLE
SPECIFIC PLANS: The Planning Commission finds Development Agreement
No. 2005 -01 is consistent with the City's General Plan and any
applicable Specific Plans if amended by General Plan Amendment No.
2001 -05 and if Specific Plan No. 2001 -01 is adopted.
SECTION 3. RECOMMENDATION: The Planning Commission recommends
that the City Council approve Development Agreement No. 2005 -01 in
the form and content presented to the Planning Commission on March
22, 2005, provided that consideration be given to use of
arbitration in Section 32 of the Development Agreement.
SECTION 4. DOCUMENTS TO CITY COUNCIL: A copy of this
resolution and documents submitted by the public shall be furnished
to the City Council.
SECTION 5. FILING OF RESOLUTION: The Community Development
Director shall certify to the adoption of this resolution and shall
cause a certified resolution to be filed in the book of original
resolutions.
OrNo "�
Resolution No. PC- 2005 -477
Page No. 3
PASSED, APPROVED, AND ADOPTED this 23rd day of May, 2005.
AYES: Commissioners DiCecco, Landis, Taillon and Vice
Chair Peskay
NOES:
ABSTAINED:
ABSENT: Chair Pozza
Scott Pozza, Chair
ATTEST:
Barry K. Hogan, Community Development Director