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HomeMy WebLinkAboutAGENDA REPORT 2005 0615 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 15, 2005, at which time the City Council continued the closed public hearing to the City Council meeting to be held on September 7, 2005, at 7:00 p.m., in the Community Center located at 799 Moorpark Avenue, Moorpark, California. Dated: June 16, 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 Chanae No. 2001 -02. continued from June 15, 2005, to September 7, 2005, was posted on June 16, 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 16, 2005. Maureen Benson Deputy City Clerk ITEM S. C. CITY OF MOORPARK, CALIFORNIA City Council Meeting of Z-/.5 -x005 ACTION: Pa --•f� ,.,,,r, AJ —� e.�.. MOORPARK CITY COUNCIL AGENDA REPORT TO: The Honorable City Council FROM: Steven Kueny, City Manager fllt—1 DATE: June 7, 2005 (CC Meeting of 6/15/2005) SUBJECT: Consider Proposed Development Agreement Between North Park village Limited Partnership and City of Moorpark Pertaining to General Plan Amendment No. 2001 -05, Specific Plan No. 2001 -01, and Zone Change No. 2001 -02 BACKGROUND On June 1, 2005, the City Council closed the public hearing on this Development Agreement and continued the agenda item to June 15, 2005, for further discussion. Staff has included the draft Development Agreement for City Council consideration for referral to the Moorpark voters under a separate agenda item (9C) with the General Plan Amendment, Specific Plan, and Zone Change for the North Park project. The resolution referenced in this staff report is to be considered as part of Agenda Item 9C. In addition, the City Council by consensus requested that staff meet with Santa Monica Mountains Conservancy staff and Caltrans staff to discuss potential wildlife crossing enhancements under the SR -118 freeway in the vicinity of the North Park Specific Plan. DISCUSSION City staff, Bonterra Consulting, and the applicant met with Paul Edelman of the Sa site on Tuesday, were identified fencing near an replacing small underpasses large nta Monica Mountains Conservancy at the project June 7, 2005. A number of potential projects that ranged from enhancing vegetation and existing underpass (Equipment Pass Road) to drainage culverts under the freeway with enough for large mammals. The attached aerial 000;011 Honorable City Council June 15, 2005 Page 2 photograph shows the potential locations for wildlife underpasses between Alamos Canyon Road and Collins Drive. Staff discussions with Amy Pettler of Caltrans, manager of the SR -118 Wildlife Corridor Working Group, revealed a rough cost estimate for a wildlife underpass of between $10 million and $15 million for a 600 -foot long underpass. She also mentioned that the potential for establishing a wildlife crossing on the proposed project interchange bridge would be considered by Caltrans at the time of project review. It should be noted that funding for improvements to wildlife crossings under the freeway could be included as a public benefit associated with the project under the terms of the Development Agreement. Should Council wish to consider including a funding contribution of the project for an enhanced wildlife crossing, language that stipulates the timing and maximum contribution could be added in Section 6.31 under the Implementation Plan. STAFF RECOMMENDATION 1. Adopt Resolution No. 2005- (in Agenda Item 9C) placing an Ordinance on the ballot that includes Development Agreement No. 2005 -01 with General Plan Amendment No. 2001- 05, Specific Plan No. 2001 -01, and Zone Change No. 2001 -02 for consideration by Moorpark voters. Attachments: 1. Potential Wildlife Crossing Enhancements 2. Draft Development Agreement 009g"01" 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 6/9/05 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND North Park Village LP for Specific Plan No. 2001 -01 (North Park) CC ATTACHMENT 2 oot ;01,1 S: \City Manager \Everyone \Agreements \North Park Dev Agr 0517 2005.DCC 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 "A" 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 -2 p����011 certain off -site improvements in connection therewith (collectively "the Project "). 1.4. 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. 1.5. 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 GPA 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, -3- 00601.IG 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- Q «r ; 01'7 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. -5- 0 "dkoiL3 4. Development of the Property. The following provisions shall govern the subdivision, development, and use of the Property. 4.1. 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 -6- 00 "019 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: -7- Q(�i�02J (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 sequencing of the construction of all or manner, provided that the Project Approvals Property covered by the or is scheduled to be construction; the rate, timing, phasing, or approval, development, or any part of the Project in any all infrastructure required by to serve the portion of the Subsequent Approval is in place _n place prior to completion of (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 (20 %), 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 -8- 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 —9— p`)cbp2ti allocated on any annual numerical basis or on any allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent the City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City -wide basis to all substantially similar types of development projects and properties with similar land use designations; and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity, or natural gas. 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 -10- 004.iUZ3 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. 6.5. 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 -12- OocozJ 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 tile roof designed consistent with applicable health codes to allow the sale of prepared foods; G. Picnic shelter with solid roof and matching tile to the restroom structure; H. Off - street parking with standard sized parking spaces; I. Skate facility; J. Swimming pools which could include recreational and competitive uses with deck, fencing, restroom, and shower /locker facility; K. Gymnasium and recreation center with an office, meeting rooms, bleachers, and restrooms /locker facilities. Size of the basketball court shall be consistent with the court at Arroyo Vista -13- o! ?(i 02,; 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 CPI for any annual indexing, it shall remain at its then current amount until such time as the next subsequent annual indexing, which results in an increase. In the event the Price Index referred to above in this subsection is discontinued or revised, such successor -14- 0 "(NO2 �a 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 (2 %) with the intent that the maximum amount of land possible be utilized for park improvements included in this subsection. This cross slope standard may be amended based upon approval by the City Council of a specific park design. The improvement plans and specifications shall be similar to those improvements constructed at other City parks as determined by the City Council at its sole discretion. If the park is allowed to be rough graded prior to installation of improvements, it shall be hydroseeded and provided with other appropriate means of erosion control. At its sole cost and expense, Developer shall: (i) design the park improvements and submit conceptual plans for City Council approval; (ii) prepare final design, plans, and specifications and submit the same to the City Council for approval; (iii) submit the approved final plans and specifications to the City for plan check along with appropriate fees; and (iv) pay the City for inspection of the construction. The 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 -15- Ootc'0 3 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 (1) 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 -16- OWOZ9 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 -17- 00tt o�J another location within the City. Such decision by 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 -18- 0vii.0 � 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 se q. 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 -19- OE�6:o � 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 se q., except for intended uses as shown in the Specific Plan and as provided for in this Agreement. -20- Q(F�sQ�.3 (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 "B ". 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 -21- OMi.0 -1 i 1 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 "C ". 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 -22- Q(9(!,'�ayJ 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 -23- ��+ 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 I $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 -24- Q99�i V4_0 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 /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 0 -25- [!�f �0 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- O/�i�04`� 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 %) 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- 004koll0 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- 00iiolii (50% of median income) and 54 units at low income (60% of median income). The ninety (90) residential rental units shall be referred to as affordable rental units and shall be 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 OW 0.412 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 OW 0.412 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 -30- Q�l�itJ�iu 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- 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 -32- defined in the Implementation Plan and Subsequent Approvals. 6.15. 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 "B ". 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- Omioi!G 6.19. Developer agrees to pay a Property Fee prior to issuance of the final inspection approval for each market -rate residential unit as follows: The greater of: 1. Thirty Thousand Dollars ($30,000.00) per residential unit adjusted annually commencing January 1, 2007, and each January 1 thereafter by any increase in the median price of 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. CO 2. Two percent (2 %) 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 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- �tiQr��i 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 80% 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; -36- 000'01 9 (c)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 (50 %) of the budgeted construction costs; and (iv) not more than twelve (12) months from expected completion, as determined by the City Community Development Director. This provision shall not apply to vegetation removal or grading necessary for soils testing or archeological resources testing. 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, -37- 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 � -38- `� overhead expenses of fifteen percent (15 %) on all out of pocket and professional service costs. In the event a CFD is authorized, the Developer agrees, to the extent permitted by law, to exclude the nature preserve, school site, public park sites, fire station site, the for -sale affordable housing units, and the affordable rental housing units from any CFD assessments. In the event any of the aforementioned lots or uses are 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 -39- 0 0 :�01; 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 (15 %) 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 "D" 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 "E" 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 "F ") 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 -40- 0 0 -� 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. (g)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. -41- Q(�i�U�•� (j)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 "F ". 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 -42- O()itO� J 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. -43 - Q �! "0� ) 4. Construction of sidewalk on the north side of Campus Park Drive between Delfen Street and Collins Drive. 5. Installation of landscaping within a portion of the existing sidewalk on the south side of Campus Park Drive between College View Park and Beragan Street. 6. Construction of a raised median on Campus Park Drive between Delfen Street and Campus Road /Beragan Street and landscaping in the median on Campus Park Drive between Collins Drive and Campus Road /Beragan Street. 7. Construction of raised landscape median on Collins Drive from Campus Park Drive to its terminus with "A" Street. 8. Determination on the funding mechanism for the maintenance of items 5., 6., and 7. above. 9. Construction of the extension of Collins Drive from University Drive (northeast location) to its intersection with "A" Street including construction of sidewalk and bike lanes on both sides and landscaping on the northwest side. 10. Construction of a second southbound lane on Collins Drive from Hearon Drive to Benwood Drive. 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 -44- 004 -1.0C. �`� 13. Transit Plan to serve the Project. 14. Schedule for dedication of sites for public uses not specifically addressed in the Development Agreement. 15. Provisions to address the potential for -sales of residential lots to other developers and subsequent sales that do not include required RPD provisions. 16. Location, improvement, ownership, and maintenance of fire access roads. 17. Developer's maintenance obligation for on- and off -site parkway, slope and median maintenance, street lighting, private and public park maintenance, storm drain systems including detention basins, culverts, pipes, and compliance with National Pollutant Discharge Elimination System (NPDES) requirements of the Project, private and public trails, private and public streets, Nature Preserve, and public and private open space areas, and all other properties planned to be owned by a public entity or in some form of common ownership. City Council shall at its sole discretion determine in addition to existing Citywide 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 -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 "B ". 20. 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. -46- 001 C, ®E3 6.34. Developer shall construct public streets adjacent to school and park sites as depicted in the Specific Plan regardless of whether said streets are designated as local or collector streets for a length and to a standard that includes a curb -to -curb width of between 48 feet and 60 feet as determined at City's sole and unfettered discretion in order to provide street parking, bike lanes, and turn lanes in addition to at least two (2) travel lanes and necessary transitions. 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 (211) 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. -47- 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 -48- 0C II Protection District and Ventura County Community 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. 6.42 Developer agrees that after the Effective Date of the Agreement, City may design and construct those improvements defined in Exhibits "D" and "E" (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. Citv Aqreements. 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 -49- 0C 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 -50- 0"(POC 3 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 -51- 00f tOCII 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 Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40. of the City or any successor thereof then in effect. The failure of the City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by the City, diminish, impede, or abrogate the obligations of Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, the City shall also review Developer's compliance with the MMRP. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees (including any escalation or increase of such fees as contemplated herein), shall be excused during any period of "Excusable Delay," as hereinafter defined, provided that the Party -52- 0C claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing, or other labor dispute; (e) shortage of materials or supplies; (f) damage to work in progress by reason of fire, flood, earthquake, or other casualty; (g) failure, delay or inability of the City to 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. 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon 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- 0()Ci0CC3 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature, and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided pursuant to subsection 11.3 herein. The remedies for breach of the Agreement by 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 Q «i -54- kQ� V Developer who violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that the City gives notice to Developer of a breach, the City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to the City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. 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- 0060cs 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- 00t.Qc,-4 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 "G" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint 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- 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 counterparts, each of which shall be all of which constitute one and the -59- be executed in multiple deemed an original, but same instrument. IN WITNESS WHEREOF, North Park Village, L.P., and the City of Moorpark have executed this Development Agreement on the date first above written. NORTH PARK VILLAGE, L.P. a California limited partnership CITY OF MOORPARK Patrick Hunter Mayor Kim John Kilkenny, its authorized representative HCR Investors, LLC a Delaware limited liability company LIM Kim John Kilkenny, its Attorney -in -Fact -60- North Park Development Agreement Exhibit A EXHIBIT "A" LEGAL DESCRIPTION BOUNDARY Being portions of Tracts J and K of Rancho Simi, in the County of Ventura, State of California, as per map recorded in Book 3, Page 7 of Miscellaneous Records (Maps), in the Office of the County Recorder of said County, described as follows: Beginning at the northeast corner of Tract No. 3963 -2 as recorded in Book 112, Page 45 of Miscellaneous Records, in the Office of the County Recorder, said corner being the easterly terminus of the 85`h course of the Incorporation of the City of Moorpark as recorded in the office of said County Recorder on March 30, 1983 as Document No. 31119 of Official Records; thence along the existing boundary of said City of Moorpark and the northerly line of said Tract No. 3963 -2 and the northerly line of the land shown on a Parcel Map filed in Book 19 Pages 5 and 6 of Parcel Maps, in the office of said County Recorder, North 89°22'48" West 4619.83 feet to the easterly line of Parcel Map No. 3220 -1, filed in Book 31, Pages 75, 76 and 77 of said Parcel Maps; thence along said easterly line, North 00°20'33" East 5311.35 feet to the southerly line of Section 22, Township 3 North, Range 19 West of said Rancho; thence along said southerly line, North 89 °35'47" West 2640.00 feet to the southeast corner of the East Half of said Section 22, being the southerly terminus of that certain course having a bearing and length of South 00 028'50" West 5101.37 feet in the easterly line of the Deed to the State of California, recorded in Book 4219, Page 364 of said Official Records; thence along the boundary of said deed the following one - hundred courses: North 00°28'50" East 5101.37 feet, North 56 °39'33" East 28.59 feet, North 70 °05'46" East 123.37 feet, South 43°27'06" East 62.30 feet, to a tangent curve concave southwesterly having a radius of 275.00 feet; thence southeasterly 139.10 feet along said curve through a central angle of 28 °58'53 ", tangent from said curve South 14°28'13" East 22.06 feet, South 16 °27'36" West 46.28 feet to a tangent curve concave easterly having a radius of 150.00 feet, southerly 91.35 feet along said curve through a central angle of 34 °53'42 ", tangent from said curve South 18°26'06" East 29.69 feet to a tangent curve concave northeasterly having a radius of 40.00 feet, southerly 59.06 feet along said curve May 17, 2002 W.O. No. 1860 -13T Page 1 of 5 H & A LD No. 5498 By: G. Anderson Chk'd by: H. Foss /d through a central angle of 84°36'13 ", tangent from said curve North 76 05741" East 66.06 feet to a tangent curve concave southerly having a radius of 250.00 feet, easterly 191.06 feet along said curve through a central angle of 43 °47'19 ", tangent from said curve South 59 °15'00" East 168.27 feet to a tangent curve concave northerly having a radius of 125.00 feet, easterly 95.29 feet along said curve through a central angle of 43 °40'34 ", tangent from said curve North 77 °04'26" East 111.97 feet, North 86 °20'17" East 125.26 feet, North 53 °07'48" East 150.00 feet, North 64 °54'02" East 209.81 feet, North 56 °12'50" East 463.28 feet to a tangent curve concave southerly having a radius of 250.00 feet, easterly 176.87 feet along said curve through a central angle of 40 °32'07 ", tangent from said curve South 83 °15'03" East 211.65 feet to a tangent curve concave northerly having a radius of 200.00 feet, northeasterly 129.50 feet along said curve through a central angle of 37 °05'52 ", tangent from said curve North 59°39'05" East 79.08 feet to a tangent curve concave northwesterly having a radius of 2000.00 feet, northeasterly 353.23 feet along said curve through a central angle of 10 00709 ", tangent from said curve North 49°31'56" East 193.17 feet to a tangent curve concave southerly having a radius of 100.00 feet, easterly 68.72 feet along said curve through a central angle of 39°22'23 ", tangent from said curve North 88 °54'19" East 132.39 feet to a tangent curve concave southerly having a radius of 350.00 feet, easterly 85.75 feet along said curve through a central angle of 14 °02'14 ", tangent from said curve South 77 °03'27" East 174.90 feet to a tangent curve concave northerly having a radius of 350.00 feet, easterly 137.50 feet along said curve through a central angle of 22 °30'33 ", tangent from said curve North 80 °26'00" East 77.88 feet to a tangent curve concave southerly having a radius of 225.00 feet, easterly 151.37 feet along said curve through a central angle of 38 °32'47 ", tangent from said curve South 61 °01'13" East 192.54 feet, South 66 °43'38" East 404.95 feet, South 53 °50'00" East 105.68 feet to a tangent curve concave northerly having a radius of 60.00 feet, northeasterly 75.60 feet along said curve through a central angle of 72 °11'32'; thence tangent from said curve North 53 °58'28" East 58.44 feet, North 75 °30'00" East 76.00 feet to a tangent curve concave northwesterly having a radius of 100.00 feet, northeasterly 97.58 feet along said curve through a central angle of 55 °54'32" to a reverse curve concave southeasterly having a radius of 110.00 feet, northeasterly 111.12 feet along said curve through a central angle of 57 °52'48 ", thence tangent from said curve North 77°28'16" East 111.87 feet, North 71 °14'59" East 148.61 feet, North 71 °15'02" East 45.01 feet, South 85 °59'09" East 246.26 feet, North 88 °18'25" East 214.85 feet, South 81 °17'42" East 312.84 feet North 83 °35'44" East 262.46 feet South 67 °54'46" East 75.20 feet, May 17, 2002 W.O. No. 1860 -13T Page 2 of 5 H & A LD No. 5498 By: G. Anderson Chk'd by: H. Foss /tl 0 0 'r J South 56 °57'50" East 97.22 feet, South 71 °16'27" East 211.81 feet, South 69°26'38" East 410.55 feet to a tangent curve concave northerly having a radius of 500.00 feet, northeasterly 172.80 feet along said curve through a central angle of 19 °48'04 ", tangent from said curve South 89 °14'42" East 152.59 feet to a tangent curve concave southwesterly having a radius of 250.00 feet, easterly 189.38 feet along said curve through a central angle of 43°24'08" to a reverse curve concave northerly having a radius of 150.00 feet, easterly 167.06 feet along said curve through a central angle of 63 °48'40 ", tangent from said curve North 70°20'46" East 75.00 feet, North 84 °03'11" East 96.52 feet,- North 56 °53'19" East 164.75 feet, North 62 °11'54" East 226.74 feet, South 86 °36'49" East 232.84 feet, North 86 °14'54" East 61.13 feet, South 69 °26'38" East 59.81 feet, South 51 °54'40" East 47.01 feet, South 71 °33'54" East 56.92 feet, South 44 °43'27" East 98.53 feet, South 45 °08'10" East 81.18 feet to a tangent curve concave northerly having a radius of 225.00 feet, southeasterly 203.66 feet along said curve through a central angle of 51 °51'44 ", tangent from said curve North 83 °00'06" East 337.50 feet, North 75 °09'24" East 380.64 feet to a tangent curve concave southerly having a radius of 250.00 feet, easterly 110.73 feet along said curve through a central angle of 25 °22'36 ", tangent from said curve South 79 °28'00" East 108.87 feet to a tangent curve concave southwesterly having a radius of 800.00 feet, southeasterly 371.29 feet along said curve through a central angle of 26 °35'30 ", non - tangent from said curve North 73 °56'30" East 171.87 feet to a tangent curve concave southerly having a radius of 250.00 feet, easterly 141.89 feet along said curve through a central angle of 32 °31'06 ", tangent from said curve South 73 °32'24" East 63.85 feet to a tangent curve concave northerly having a radius of 350.00 feet, northeasterly 151.30 feet along said curve through a central angle of 24 °46'06 ", tangent from said curve North 81 °41'30" East 241.90 feet to a tangent curve concave northerly having a radius of 300.00 feet, northeasterly 138.84 feet along said curve through a central angle of 26 °30'58 ", tangent from said curve North 55 °10'32" East 50.28 feet, North 67 °04'04" East 84.69 feet, North 69021'21" East 236.05 feet to a tangent curve concave northwesterly having a radius of 450.00 feet, northeasterly 323.23 feet along said curve through a central angle of 41 °09'19 ", tangent from said curve North 28 °11'52" East 173.95 feet, North 20 °33'22" East 68.35 feet, North 21°24'27" East 44.64 feet to a tangent curve concave southeasterly having a radius of 100.00 feet, northeasterly 141.12 feet along said curve through a central angle of 80 °51'26 ", tangent from said curve South 77 °44'07" East 64.84 feet, South 59°26'10" East 147.49 feet, South 72 °47'02" East 222.99 feet, North 74 °30'00" East 228.02 feet to a tangent curve concave northerly having a radius of 450.00 May 17, 2002 W.O. No. 1860 -13T Page 3 of 5 H & A LD No. 5498 By: G. Anderson Chk'd by: H. Foss /tl feet, northeasterly 107.17 feet along said curve through a central angle of 13 038'45 ", tangent from said curve North 60 °51'15" East 15.30 feet, North 69 °48'51" East 72.45 feet, South 86 °49'13" East 20.77 feet to a tangent curve concave northerly having a radius of 225.00 feet, northeasterly 135.26 feet along said curve through a central angle of 34°26'36 ", tangent from said curve North 58 °44'11" East 36.28 feet, North 65 004117" East 156.59 feet to a point on a non - tangent curve concave southeasterly having a radius of 350.00 feet, a radial line to said point bears North 44 °51'50" West, northeasterly 238.39 feet along said curve through a central angle of 39 °01'28 ", tangent from said curve North 84 °09'38" East 185.67 feet, North 74°39'00" East 52.89 feet and North 62 °06'11" East 177.02 feet to the westerly line of Section 18, Township 3 North, Range 18 West, of said Rancho Simi; thence, along said westerly line and along the westerly line of Section 19, Township 3 North, Range 18 West, of said Rancho Simi, South 0 °33'56" West 6107.93 feet to the southwesterly corner of said Section 19; thence South 89 °33'21" East 4594.55 feet along the southerly line of said Section 19; thence South 59 °39'43" West 186.08 feet; thence South 40 001'49" West 326.50 feet; thence South 66 015'02" West 546.26 feet; thence South 25°27'44" West 465.19 feet; thence South 9 °27'44" West 304.14 feet; thence South 3 °05'39" East 370.54 feet; thence South 16 °41'57" West 730.82 feet; thence South 23 °35'41" West 474.68 feet; thence South 3 °20'02" East 461.56 feet; thence South 18°26'06" West 252.98 feet; thence South 15 °56'43" East 364.01 feet; thence South 8 °52'50" West 110.26 feet to the north line of the south half of the southeast quarter of Section 30, Township 4 South, Range 18 West of said Rancho Simi; thence along the north line of said south half, North 89 033'21" West 514.44 feet to the northwest corner of said south half; thence, along the west line of said south half, South 0°26'39" West 560.02 feet; thence South 62°21'14" West 355.13 feet; thence South 36 °28'09" West 286.01 feet; thence South 82 °52'30" West 806.23 feet; thence South 62 °31'32" West 281.78 feet; thence South 28 °48'39" West 456.51 feet; thence South 1 050'51" West 310.16 feet; thence South 36 1105'54" West 594.05 feet; thence South 59 °55'53" West 219.55 feet; thence South 79 °33'45" West 386.39 feet; thence North 77 °59'19" West 480.52 feet; thence South 86 °15'25" West 1072.29 feet; thence South 17 °21'30" West 776.07 feet to the Boundary of the City of Moorpark as mentioned above; thence North 89 033'21" West 844.98 feet; thence South 0°26'39" West 660.00 feet; thence North 89 °33'21" West 2496.79 feet; thence North 9 °59'29" West 163.79 feet; thence North 62 °58'06" West 267.24 feet; thence North 25 °14'06" West 252.32 feet; thence North 41 °19'06" West 136.00 feet; May 17, 2002 W.O. No. 1860 -13T Page 4 of 5 H & A LD No. 5498 By: G. Anderson Chk'd by: H. Foss /tl ' j Y thence North 65 °51'38" West 284.04 feet; thence North 0 °37'10" East 1844.18 feet to the point of beginning. Containing 3552.5 acres, more or less. The land described herein is shown on Exhibit "B ", attached hereto and by this reference made a part hereof. Anderson, .S. 4400 License Expires: September 30, 2005 Date: p VAN D o Gerald R. Anderson ;a Exp. 09/30105 No. 4400 \� �9�OF CA��F��� May 17, 2002 W.O. No. 1860 -13T Page 5 of 5 H & A LD No. 5498 By: G. Anderson Chk'd by: H. Foss /tl EXHIBIT "B" Sketch to Accompany Legal Description BEING PORTIONS OF TRACTS J AND K, RANCHO SIMI 3 MR 7 SOUTHERLY LINE BOOK 4219, PAGE 364 O.R. 0 3 4 5 o ,_WESTERLY LINE O O O ^ ZFi ' E 1 /2SEC 22, ro w UN, R19W 3 RANCHO SIMI Ln Ln o / o Z N89 35'47 "W TRACTS J AND K, RANCHO Shill 3 MR 7 2640 -00' 72 23 27 28 EASTERLY LINE Ln P.O.B. NE COR TR 3963 -2 112 MR 45 M CD_ o� z M .19PMB5 NORTH LINE &6 27 , ; 3250.22 -.� 28 25 ' =N89 2'48" °37' 4619.83 = T � ° R. A c � Z °s m n cn a z o _Q_ zry� ' °- z m � � m (D - > % moo v� V) — C z rr N O �< � C) cn D z 0 m M 0 z Ao C7 D � r m� m a r Za Ct Ln ca 00 m. m N O O O1 -n W (0 W O C Z WIN v n Q w C) 0) m m CD 2 rrt I C� L (7) mm D F)�-H NNZ m `—i L71 N-) N00 °28'50 "E 5101 4=34 °53'42 "R = 150.00' L= 91.35' ` S18 026'06 "E 29.69' 4=84 °36'13" R= 40.00' L= 59.06' N76 057'41 "E 66.06' - = -' 4 =43 °47'19" R= 250.00' L= 191.06' -, S59 015'00 "E 168.27' 4 =43 °40'34 "R = 125.00' L= 95.29,E N77 004'26 "E N86 020'17 "E 125.26' -' j N53 007'48 "E 150.00' (/) -i N64 054'02 "E 209.81' - ---N56 039'33 "E 28.59' N70 005'46 "E 123.37' S43 °27'06 "E 62.30' 4=28 °58'53" R= 275.00' L= 139.10 =_- S14 °28'13 "E 22.06' '=-S16 027'36 "W 46.28' L N59 °39'05 "E 79.08'-=__, - co 0 0 X N U) �0 c C) m LA oZ M �'41 .. 0. 0 O, N49 031'56 "E 193.17' 4=39 °22'23" R= 100.00' L= 68.72' - =- - -- N88 °54'19 "E 132.39', 4 =14 °02'14 "R= 350.00'L= 85.75' SEE SHEET 3 m °m n �X co V b �o o' D A=40032'07" R= 250.00' L= 176.87' - -- _ �— C:? S83 015'03 "E 211.65' L� 4=37 °05'52" R= 200.00' L= 129.50' -,--- L N59 °39'05 "E 79.08'-=__, - co 0 0 X N U) �0 c C) m LA oZ M �'41 .. 0. 0 O, N49 031'56 "E 193.17' 4=39 °22'23" R= 100.00' L= 68.72' - =- - -- N88 °54'19 "E 132.39', 4 =14 °02'14 "R= 350.00'L= 85.75' SEE SHEET 3 m °m n �X co V b �o o' N N�7 F- W W 2 co W W co EXHIBIT "B" Sketch to Accompany Legal Description SOUTHERLY LINE BOOK 4219, PAGE 364 O.R. . SJO.4' . S6 404 Ifi 3' , ♦` ,r 11 N cc °o o C - r- V it Cq c0 O N O w M ^ J o w II M O ^ J w O rn N O O N II M O O N j 11 O O NO rn O cD f/7 M O N O O 11 ao V) a ^ O N O of z N Z z d rif 11 N z O co N N Z o o N v M u7 INf 4 _M o � d � EXHIBIT "B" Sketch to Accompany Legal Description SOUTHERLY LINE BOOK 4219, PAGE 364 O.R. F1 'A RCE1 -1 d' W W 2 N830 35' 44" E co 262.46 W 312.84' ., W S81 *17'42 "E , . , S69° Cl) „ ' . 26:3811 CV `4jO CO ry r h't), �6 oh C y �. OO. �h Jar Rvr —! 1 r 2 IN-ST. 1\10, / J @-J J S)% '3 E)) 2 HUNSAKER &ASSOCIATES BOUNDARY I R V I N E , I N C ��ip® v'� PLANNING ■ ENGINEERING SURVEYING " Three Hughes •Irvine, G1 92618 • PH (949) 583•1010 FX (949) 583A759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE: 5 -14 =02 ATE None BY. T. VO By. G.R. ANDERSON SCALE: 1" =500' W.O.1860 -13T I: \1860- 13T \LD \5498 \SHT03.dw9 H&A LEGAL No. 5498 SHEET 3 OF 9 . SJO.4' . S6 404 Ifi 3' , ♦` ,r 11 N F ,� lV - r- V it Cq c0 O N N w CC) cD -1 r ,mod- O a0 II M O O u-) -j n c0 n O W cn !' LO '- O N O j 11 O O NO rn O cD f/7 O O N O O 11 ao co O O^ a ^ N Z ° 11 M _ O cdo Z Z z PO Ln rif 11 N z N N Z o M u7 _M o � d � N LO I, A Al d F1 'A RCE1 -1 d' W W 2 N830 35' 44" E co 262.46 W 312.84' ., W S81 *17'42 "E , . , S69° Cl) „ ' . 26:3811 CV `4jO CO ry r h't), �6 oh C y �. OO. �h Jar Rvr —! 1 r 2 IN-ST. 1\10, / J @-J J S)% '3 E)) 2 HUNSAKER &ASSOCIATES BOUNDARY I R V I N E , I N C ��ip® v'� PLANNING ■ ENGINEERING SURVEYING " Three Hughes •Irvine, G1 92618 • PH (949) 583•1010 FX (949) 583A759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE: 5 -14 =02 ATE None BY. T. VO By. G.R. ANDERSON SCALE: 1" =500' W.O.1860 -13T I: \1860- 13T \LD \5498 \SHT03.dw9 H&A LEGAL No. 5498 SHEET 3 OF 9 C SOUTHERLY LINE w W 2 0�,1 a4CV a 1 ca o1w ova WOr<�:�7 C-3�� I ;I it , ,, n I , 1 I � EXHIBIT "B" Sketch to Accompany Legal Description. 0 N II 47� 0� �^, O Cn u7 W N 1\ CO ,. `� vim,' tiC� �h ' � "00 00 IN O O�, O h' ��'�Pv ACV �cV •�v'` 0,\�0� C" 65�pi o� d •d� = II o _ SOUTHERLY LINE o n c i BOOK 4219, PAGE 364 O.R. �o d-F v �' N N� o A =25 °22'36" H W it , ,, n R= 250.00' `_; ��� ;it L= 110.73' ��� ��, yp' 41 2603 N83 000'06 "E 3�i 0 LLI LU 337.50' 3g0.64 lb cb- �. , c^ ��• �h d ono tit d I- / F r r ) �r r�„r � I1\1ST NO, / 9-@---03411K 0JR, ®HUNSAKER & ASSOCIATES R V I N E, I N C BOUNDARY 0111-10s" PLANNING ■ ENGINEERING SURVEYING Three Hughes • Irvine, CA 92618 - Pi- (949) 583 -1010 • FX: (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE: REV. .DWC CK'd 5- 14 - -02 DATE None 6}c T. V0._ e_,. G.R. ANDERSON SCALE: 1" =500' W.O. 1860 -13T I: \1860- 13T \LD \5498 \SHT04.dwg H&A LEGAL No. 54981 SHEET 4 OF 9 EXHIBIT "B" Sketch to Accompany Legal Description oa Ob` ,tea SOUTHERLY LINE <v ^ BOOK 4219, PAGE 364 O.R. N44 051'50 "W �.h Off. ,<v ,OHO O� N60 °02'47 "E 17.52' , j I PA RC-E I 3 ` ]INS )l , 1\0, D-8-1-03Q-A.- OR i �.Z) M rn 0 3 to M 0 O Co N 1 SEE SHEET 1 ®HUNSAKER & ASSOCIATES I R V I NE, I N C. BOUNDARY_ oIr1c.ios,3 PLANNING ■ ENGINEERING ■ SURVEYING Three Hughes - Irvine, CA 92618 - PR (949) 583.1010 - FX (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE- 5 -14 -02 RATi None e`Y`� T. VO eY° G.R. AN_DERSON SCALE: . 1"=500'. W.O: 1860 -13T I:. \.18.60- 13T \LD \5498 \SHT05.dwg — H &A LEGAL NO. 5498 1 SHEET 5 OF 9 2 h RAD S86 °49'1 YE ' '�. oti 20.77' LU W h� `V� ^O /� �� °AO LLJ ^ h' � 00 0�'b Cv lb �"V hcb �r her O 0 40 ti0 , 5� v � tea• � °o ho � °00 o� d I j I PA RC-E I 3 ` ]INS )l , 1\0, D-8-1-03Q-A.- OR i �.Z) M rn 0 3 to M 0 O Co N 1 SEE SHEET 1 ®HUNSAKER & ASSOCIATES I R V I NE, I N C. BOUNDARY_ oIr1c.ios,3 PLANNING ■ ENGINEERING ■ SURVEYING Three Hughes - Irvine, CA 92618 - PR (949) 583.1010 - FX (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE- 5 -14 -02 RATi None e`Y`� T. VO eY° G.R. AN_DERSON SCALE: . 1"=500'. W.O: 1860 -13T I:. \.18.60- 13T \LD \5498 \SHT05.dwg — H &A LEGAL NO. 5498 1 SHEET 5 OF 9 EXHIBIT '$B" Sketch to Accompany Legal Description SEE SHEET 6 /\ AR(� /I A � -r N89 033'21 "W 514.44' IC — — UD O N uu 0 o r�ANC-1J—JO SS1,1Ml ��° ^r JJ �r r, r S82 °52130 "W 806.23' C 3N) 1 j r vv r�r>>�Jr�J0 �1j\j1J >> �J a� Cb 40 J -J 1b 41 Jt 00 o� W �� o W o�C h = C0 W o� crr -J N77 °59'19 "W �,� J� � ` �- - - -- ' 480.52' i Call- � - r�� \J , r�-l0\i�l 3g 6.39 ° 95 W SS 5790 33' 45 rRANC-11 —JO HUNSAKER &ASSOCIATES I R V I N E I N C. �� BOUNDARY o PLANNING ENGINEERING SURVEYING Three Hughes -Irvine, CA 92678 - PH: (949) 593.7010 - FX (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE: 5 -14 -02 DATE None -8y. T. VO e ° G.R. ANDERSON SCALE: 1" =500' WO. 1860-13T I: \1860- 13T \LD \5498 \SH1 -07.dwg H&A LEGAL NO. 5498 SHEET 7 OF 9 EXHIBIT. Sketch, to Accompany Legal Description la�J� —r. l�lr,/ J�J!�J�rJJ�JJr� S86 015'25 "W 1072.29' JJ UJ I1J LLJ Ul co r -r r JJ 48.S ' T'131\1) R -Div Rr�l�lr� -J� 0 N89 °33'21 "W 844.98' C) � W o LU , co o� NORTH LINE OF S 1/2 - - -_ OF S 1/2 OF NE 1/4 ILU co �+ o - SEC 36, T3N, R19W - RANCHO SIMI cn �— N89-33-277 2496.79' -- WEST LINE OF S 1/2 OF S 1/2 OF NE 1/4 � SEC 36, T3N, R19W RANCHO SIMI SOUTH LINE NW 1/4 SEC 36, T3N, R19W RANCHO SIMI --- PLANNING ER &ASSOCIATES BOUNDARY 0 " IRVINE, V N E I NC. "OSG ENGINEERING SURVEYING Three Hughes - Irvine, CA 92618 - PH: (949) 583.1010 - FX* (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA DATE` 5 -14 -02 DATE None Bye T. VO eY° G.R. ANDERSONJ SCALE. 1" =500'. W.O. 1860 -13T I: \1860- 13T \LD \5498 \SHT08.dwg I I H&A LEGAL No. 5498 SHEET 8 OF 9 EXHIBIT "B" Sketch to Accompany Legal Description A� CD T W W P.O.B. L L1J U NORTHEAST CORNER 0 TRACT NO. 3963 -2 112 MR 45 /J )j N89 °22'48 "W 4619.83' 3 -ID Pj\j] 616 TRA C--r 1\10, W J 6 3- 2 9 -1 -12 N]JR 41-3 W 0 o CD ° Z LLI -• ' 42 RS 49 (83- 12120 7 OR) C40 W W N65 °51'38 'W co 284.04' -- N41 °19'06 "W 136.00'==-- - = N25 °14'06 "W 252.32' - ` SOUTH LINE NW 1/4 BOUNDARY OF THE CITY OF MOORPARK i SEC 36, T3N, R19W RECORDED 3 -30 -83 AS N62 °58'06 "W 267.24' - =- RANCHO SIMI DOC NO. 31119, OR , N09 °59'29 "W 163.79'- = =, ; -N89 °33'21 "W 2496.79 HUNSAKER &ASSOCIATES BOUNDARY vS I R V I N E , I N C PLANNING 0 ( � ENGINEERING SURVEYING Three Hughes •Irvine, CA 9261a • PH: (949) 583.1010 • FX (949) 583.0759 UNINCORPORATED TERRITORY OF THE COUNTY OF VENTURA, STATE OF CALIFORNIA oA,>. 5 -14 -02 DATi None - T. VO 8y' G.R. ANDERSON SCALE: 1"=500' W.O. 1860 -13T I:\ 1860- 13T \LD \5498 \SHT09.dwg H&A LEGAL No. 5498 SHEET 9 OF 9 North RE�0 Do elOpment Agreement Exhi}t 'B a .q IFTT- -;;e FROM NORTHERN TANK FARM !AGE- " a� i 1 T, �s AlATllff- FfE S RVE TANK FARM OIL PIPELINE EXHIBIT NORTH PARK VILLAGE O U S 3 0 400 800 Hunsaker & Associates Irvine, Inc. Date Prepared: 05/18/05 r: mo �,�� +,� a..Pro;.� „Y mi5a3o- acnYS.a. yr: o00 ,� ,� otiae�.n r„M,�. 15130- 6FAY5— IXHBIi.O.a 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 of Specific Plan No. 2001 -01 (SP 2001 -01), which includes ninety (90) single- family housing units to be sold to qualified low and very low income buyers, hereinafter referred to as for -sale affordable housing units, and ninety (90) apartment units to be rented to qualified low and very low income tenants; and WHEREAS, on the DEVELOPER and CITY entered into a Development Agreement (Development Agreement) for SP 2001 -01; and 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 OMB OE:-) very low 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 housing 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 and housing units shall be City staff approval of but not limited to include conditions of to provisions of the 2 SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC A ° 0 5 F� 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 0 0 SACity Manager \Everyone\Agreements\North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC SECTION 6. Defense and Indemnity. DEVELOPER agrees to indemnify, hold harmless and defend at its sole expense, with counsel reasonably acceptable to CITY, any action brought against it or CITY by a purchaser of a for -sale affordable housing unit for any alleged construction defects or related problems, or any action brought by any party to approve, extend or renew any permit, related actions under CEQA, any subsequent permits to implement /construct the Project and this Agreement. DEVELOPER further agrees to reimburse CITY for any court costs and /or attorneys' fees which CITY may be required by the court to pay as a result of any such action. CITY may, at its sole discretion, participate in the defense of any such action at CITY's cost, but such participation shall not relieve DEVELOPER of its obligation under this Section. SECTION 7. Waiver. DEVELOPER hereby covenants not to bring any action against CITY to (a) attack, review, set aside, void, or otherwise annul this Agreement, in whole or in part, or (b) recover any compensation or obtain any relief for any injury, damage, loss, or deprivation of any right alleged to have been sustained as a result of CITY's action on any matter related to this Agreement. SECTION 8. following shall DEVELOPER: Defaults and Remedies. Each constitute an "Event of Default" of the 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 SACity Manager\Everyone\AgreementsWorth Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC 0 S? 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 5 SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC OW10 ?3 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 6 SACity Manager \Everyone\Agreements\North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC ��.� ®�� 1 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 7 SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC 0. !' 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 SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC 00", �3tu (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. 9 SACity Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC 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 10 S: \City Manager \Everyone\Agreements\North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC 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 By. Kim John Kilkenny, its authorized representative HCR Investors, LLC a Delaware limited liability company Kim John Kilkenny, its Attorney -in -Fact 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 Kilkenny 11 SAC4 Manager \Everyone\Agreements \North Park Purchase and Sale Agr 0516 2005 -wo leg format -Exh C.DOC North Park Development Agreement Exhibit D Improvements to the Collins Drive /Campus Park Drive Intersection Only Requiring City Permits 1. Add 2nd westbound left -turn lane on Campus Park Drive at Collins Drive. 2. Convert 2nd eastbound through lane on Campus Park Drive to right turn lane. 3. Modify traffic signal at Collins Drive /Campus Park Drive to provide eastbound right -turn green -arrow overlap with the adjacent northbound left -turn movement. ooffil ()O North Park Development Agreement Exhibit E Improvements to the Collins Drive /Campus Park Drive Intersection and the Collins Drive /SR -118 Freeway Interchange Requiring Both City and Caltrans Permits Collins Drive /Campus Park Drive Intersection 1. Convert northbound right -turn lane on Collins Drive to a free right -turn lane. Collins Drive /SR -118 Westbound Off -Ra 2. Convert SR -118 Freeway westbound off -ramp right -turn lane at Collins Drive to a free right -turn lane. Collins Drive /SR -118 Eastbound On /Off -Ram 3. Signalize Collins Drive /SR -118 Freeway /Los Angeles Avenue (Arroyo Drive) interchange. 4. Convert westbound through lane on Los Angeles Avenue (Arroyo Drive) to a shared through /second right -turn lane OW -AW- North Park Development Agreement Exhibit F Nineteen Homes Backing onto Campus Park Drive and Two Homes at the Terminus of Delfen Street Legal Description Assessor Parcel Number Street Address Tract 2668, Lot 10 514 -0 -115 -605 15427 Kernvale Avenue Tract 2668, Lot 9 514 -0- 115 -615 15431 Kernvale Avenue Tract 2668, Lot 8 514 -0 -115 -625 15439 Kernvale Avenue Tract 2668, Lot 7 514 -0 -115 -635 15447 Kernvale Avenue Tract 2668, Lot 6 514 -0- 115 -645 15455 Kernvale Avenue Tract 2668, Lot 5 514 -0 -115 -655 15463 Kernvale Avenue Tract 2668, Lot 4 514 -0 -115 -665 15471 Kernvale Avenue Tract 2668, Lot 3 514 -0 -115 -675 15479 Kernvale Avenue Tract 2668, Lot 2 514 -0 -115 -685 15487 Kernvale Avenue Tract 2668, Lot 1 514 -0 -115 -695 15495 Kernvale Avenue Tract 2668, Lot 109 514 -0 -113 -015 15513 Kernvale Avenue Tract 2668, Lot 108 514 -0 -113 -025 15521 Kernvale Avenue Tract 2668, Lot 107 514 -0 -113 -035 15529 Kernvale Avenue Tract 2668, Lot 106 514 -0 -113 -045 15537 Kernvale Avenue Tract 2668, Lot 105 514 -0 -113 -055 15545 Kernvale Avenue Tract 2668, Lot 104 514 -0 -113 -065 15553 Kernvale Avenue Tract 2668, Lot 103 514 -0 -113 -075 15561 Kernvale Avenue Tract 2668, Lot 102 514 -0 -113 -085 15569 Kernvale Avenue Tract 2668, Lot 101 514 -0 -113 -095 15577 Kernvale Avenue Tract 2668, Lot 94 514 -0 -114 -255 15494 Kernvale Avenue =Tract 2668, Lot 95 514 -0 -114 -265 15504 Kernvale Avenue EXHIBIT "G" 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