HomeMy WebLinkAboutAGENDA REPORT 2020 0304 REG CCSA ITEM 11BCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of March 4, 2020
ACTION Adopted Ordinance No. 482.
BY B.Garza.
B. Consider Ordinance No. 482 Approving Development Agreement No. 2014-03 by
and between the City of Moorpark and Sky Line 66, LLC, for General Plan
Amendment No. 2014-01, Zone Change No. 2014-01, Residential Planned
Development No. 2014-02, and Vesting Tentative Tract Map No. 5869, a 69 Unit
Multi-Family Residential Condominium Development, Recreation Center, and
Associated Site Improvements at 635 Los Angeles Avenue. Staff
Recommendation: Waive full reading, declare Ordinance No. 482 read for the
second time, and adopted as read. (ROLL CALL VOTE REQUIRED)
Item: 11.B.
ORDINANCE NO. 482
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF MOORPARK, APPROVING DEVELOPMENT
AGREEMENT NO. 2014-03 BY AND BETWEEN THE
CITY OF MOORPARK AND SKY LINE 66, LLC, FOR
GENERAL PLAN AMENDMENT NO. 2014-01, ZONE
CHANGE NO. 2014-01, RESIDENTIAL PLANNED
DEVELOPMENT NO. 2014-02, AND VESTING
TENTATIVE TRACT MAP NO. 5869, A 69 UNIT MULTI-
FAMILY RESIDENTIAL CONDOMINIUM DEVELOPMENT,
RECREATION CENTER, AND ASSOCIATED SITE
IMPROVEMENTS AT 635 LOS ANGELES AVENUE
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on October 14, 2014, applications for General Plan Amendment No.
2014-01, Zone Change No. 2014-01, Residential Planned Development No. 2014-02,
Vesting Tentative Tract Map No. 5869, and Development Agreement No. 2014-03 were
filed by Menashe Kozar for Sky Line 66, LLC, for the construction of a 69 unit multi-
family residential condominium development, including a recreation center and
associated site improvements, located at 635 Los Angeles Avenue; and
WHEREAS, on January 28, 2020, the Planning Commission adopted Resolution
No. 2020-647, recommending to the City Council to adopt a Negative Declaration and
conditional approval of General Plan Amendment No. 2014-01, Zone Change No. 2014-
01, Residential Planned Development No. 2014-02, Vesting Tentative Tract Map No.
5869, and Development Agreement No. 2014-03; and
WHEREAS, at a duly noticed public hearing on February 19, 2020, the City
Council considered the Development Agreement and public testimony related thereto;
and
WHEREAS, the City Council has considered all points of public testimony
relevant to the Development Agreement and has given careful consideration to the
content of the Development Agreement, and has reached a decision on the matter; and
WHEREAS, on February 19, 2020, the City Council adopted Resolution No.
2020-3887, adopting a Negative Declaration and approving General Plan Amendment
No. 2014-01 and introducing Ordinance No. 481, approving Zone Change No. 2014-01,
for the project referenced above.
Item: 11.B.
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Ordinance No. 482
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council of the City of Moorpark does hereby find as follows:
A. The provisions of the development agreement are consistent with the General
Plan in that the proposed project will provide for the orderly development of land
identified in the City’s General Plan and Zoning Ordinance as appropriate for
residential development and the Development Agreement will strengthen the
planning process by providing vesting of development rights, addressing timing
of development, determining development fees, and providing affordable
housing.
B. The provisions of the agreement are consistent with Chapter 15.40 of the
Moorpark Municipal Code in that 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.
SECTION 2: The City Council hereby adopts the Development Agreement attached
hereto and incorporated herein (Exhibit A) between the City of Moorpark, a municipal
corporation, and Sky Line 66, LLC and the City Clerk is hereby directed to cause one
copy of the signed, adopted agreement to be recorded with the County Recorder no
later than ten (10) days after the City enters into the development agreement pursuant
to the requirements of Government Code Section 65868.5.
SECTION 3: Upon the effective date of this ordinance, the Community
Development Director shall cause the property that is the subject of the Development
Agreement to be identified on the Zoning Map of the City by the designation “DA”
followed by the dates of the term of said Agreement.
SECTION 4. If any section, subsection, sentence, clause, phrase, part or portion of
this Ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council declares that it would have adopted this
Ordinance and each section, subsection, sentence, clause, phrase, part or portion
thereof, irrespective of the fact that any one or more section, subsections, sentences,
clauses, phrases, parts or portions be declared invalid or unconstitutional.
SECTION 5. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
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Ordinance No. 482
Page 3
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall
make a written record of the passage and adoption thereof in the minutes of the
proceedings of the City Council at which the same is passed and adopted; and shall
publish notice of adoption in the manner required by law.
PASSED AND ADOPTED this 4th day of March, 2020.
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler
City Clerk
Exhibit A: Development Agreement with Exhibits
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Ordinance No. 482
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EXHIBIT A
DEVELOPMENT AGREEMENT
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
SKY LINE 66, LLC
123
Ordinance No. 482
Page 5
DEVELOPMENT AGREEMENT
This Development Agreement the ("Agreement") is made and entered into on
______________, 2020 by and between the CITY OF MOORPARK, a municipal
corporation (referred to hereinafter as "City") and SKY LINE 66, LLC, a California
Limited Liability Company, the owner of real property within the City of Moorpark
generally referred to as Residential Planned Development Permit 2014-02 (referred to
hereinafter as "Developer"). City and Developer are referred to hereinafter collectively
as a "Party" and collectively as the "Parties." In consideration of the mutual covenants
and agreements contained in this Agreement, City and Developer agree as follows:
1. Recitals: This Agreement is made with respect to the following facts and
for the following purposes, each of which is acknowledged as true and
correct by the Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark
Municipal Code Chapter 15.40, City is authorized to enter into a
binding contractual agreement with any person having a legal or
equitable interest in real property within its boundaries for the
development of such property in order to establish certainty in the
development process.
1.2 Sky Line 66, LLC, is the owner in fee simple of certain real property
in the City of Moorpark identified in the legal description set forth in
Exhibit “A” which exhibit is attached hereto and incorporated by
reference, commonly known as 635 Los Angeles Avenue, referred
to hereinafter as the “Property”.
1.3 Prior to, and in connection with, the approval of this Agreement, the
City Council reviewed the project to be developed pursuant to this
Agreement as required by the California Environmental Quality Act
(“CEQA.”) On February 19, 2020, the City Council adopted
Resolution No. 2020-3887, adopting the Negative Declaration
(“ND”) prepared for this Agreement and the Project Approvals as
defined in Subsection 1.4 of this Agreement.
1.4 General Plan Amendment (GPA) No. 2014-01, Zone Change (ZC)
No. 2014-01, Residential Planned Development (RPD) Permit No.
2014-02, Vesting Tentative Tract Map (TTM) No. 5869 including all
subsequently approved modifications and permit adjustments to the
RPD Permit, TTM, and all amendments thereto (collectively "the
Project Approvals"; individually "a Project Approval") provide for the
development of the Property with sixty-nine (69) townhouse
condominiums and the construction of any improvements in
connection therewith ("the Project").
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Ordinance No. 482
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1.5 By this Agreement, City desires to obtain the binding agreement of
Developer to develop the Property in accordance with the Project
Approvals and this Agreement. In consideration thereof, City
agrees to limit the future exercise of certain of its governmental and
proprietary powers to the extent specified in this Agreement.
1.6 By this Agreement, Developer desires to obtain the binding
agreement of City to permit the development of the Property in
accordance with the Project Approvals and this Agreement. 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.
1.7 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 General
Plan of City, as currently amended.
1.8 On October 22, 2019, the Planning Commission commenced a duly
noticed public hearing on this Agreement, and at the conclusion of
the hearing on January 28, 2020, recommended approval of this
Agreement.
1.9 On February 19, 2020, the City Council of City (“City Council”)
commenced a duly noticed public hearing on this Agreement, and
following the conclusion of the hearing closed the hearing and
introduced and provided first reading to Ordinance No. 482 (“the
Enabling Ordinance”) that approves this Agreement. Thereafter on
March 4, 2020, the City Council gave second reading to and
adopted the Enabling Ordinance.
2. Property Subject To This Agreement. All of the Property shall be subject
to this Agreement. The Property may also be referred to hereinafter as
"the site."
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 (subject to Subsection 3.2 below) 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.
3.1 Constructive Notice and Acceptance. Every person who acquires
any right, title or interest in or to any portion of the Property shall be
conclusively deemed to have consented and agreed to be bound by
this Agreement, whether or not any reference to the Agreement is
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Ordinance No. 482
Page 7
contained in the instrument by which such person acquired such
right, title or interest, subject to Subsection 3.2 below.
3.2 Release Upon Subsequent Transfer. Upon the conveyance of
Developer’s interest in the Property or any portion thereof by
Developer or its successor(s) in interest, the transferor shall be
released from its obligations hereunder with respect to the portion
of Property conveyed as of the effective date of the conveyance,
provided that the transferee expressly assumes all obligations of
the transferred portion of the Property and a copy of the executed
assignment and assumption agreement is delivered to the City prior
to the conveyance. Failure to provide a written assumption
agreement hereunder shall not negate, modify or otherwise affect
the liability of the transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City discretion to
approve or deny any such conveyance, except as provided in
Subsection 6.13 of this Agreement with respect to the sale of
completed “affordable units” (as defined in that subsection) to
qualified buyers. Notwithstanding the foregoing, this Agreement
shall not be binding upon the transferee of a Completed Unit with
respect to the transferee’s interest in such Completed Unit, and the
rights and obligations of Developer under this Agreement shall not
run with the portion of the Property that is conveyed with the
Completed Unit after such conveyance of the Completed Unit by
Developer or its successor in interest. For purposes of this
Agreement, “Completed Unit” means a completed residential unit
within the Property for which the City has issued a certificate of
occupancy.
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
all City building codes in effect at the time the plan check or permit
is approved per Title 15 of the Moorpark Municipal Code and to any
federal or state building requirements that are then in effect
(collectively "the Building Codes").
Notwithstanding the preceding sentence, each building in the
project shall have roof mounted solar panels and related facilities
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Page 8
conforming with 2019 California Building Code Title 24, Part 6,
Building Energy Efficiency Standards for the generation of
electricity for each condominium unit. The system design of roof-
mounted solar facilities must be completed in such a manner that
electricity production can either be provided for each unit
independently of other units, or provided for several units and then
divided among all such units with each unit getting proportional
credit for the solar energy produced.
4.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set
forth in the Project Approvals and this Agreement.
5. Vesting of Development Rights.
5.1 Vested Right to Develop; Timing of Development. Developer and
its successors in interest shall have the vested right to develop the
Property in accordance with the terms and provisions of the Project
Approvals and this Agreement. The Parties intend that this
Agreement, together with the Project Approvals, shall serve as the
controlling document for all subsequent actions, discretionary and
ministerial, relating to the development and occupancy of the
Property, including, without limitation, all Subsequent Approvals (as
defined below). 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.
No future amendment of any existing City ordinance or resolution,
or future adoption of any ordinance, resolution or other action, that
purports to limit the rate or timing of development over time or alter
the sequencing of development phases, whether adopted or
imposed by the City Council or through the initiative or referendum
process, shall apply to the Property provided the Property is
developed in accordance with the Project Approvals and this
Agreement. Nothing in this subsection shall be construed to limit
City's right to ensure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent
Approvals, and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the
Project Approvals, whether adopted or approved by the City
Council or through the initiative or referendum process, shall apply
to any portion of the Property, unless the Developer has agreed in
writing to the amendment.
127
Ordinance No. 482
Page 9
5.3 Issuance of Subsequent Approvals. Applications for land use
approvals, entitlements and permits, including without limitation
subdivision maps (e.g. tentative, vesting tentative, parcel, vesting
parcel, and final maps), subdivision improvement agreements and
other agreements relating to the Project, lot line adjustments,
preliminary and final planned development permits, use permits,
design review approvals (e.g. site plans, architectural plans and
landscaping plans), encroachment permits, and sewer and water
connections that are necessary to or desirable for the development
of the Project (collectively "the Subsequent Approvals"; individually
"a Subsequent Approval") shall be consistent with the Project
Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals
and by the applicable provisions of the Moorpark General Plan, the
Moorpark Municipal Code and other City ordinances, resolutions,
rules, regulations, policies, standards and requirements as most
recently adopted or approved by the City Council or through the
initiative or referendum process and in effect at the time that the
application for the Subsequent Approval is deemed complete by
City (collectively "City Laws"), except City Laws that:
(a) change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any
part thereof, or otherwise require any reduction in the
number of proposed buildings or other improvements from
what is allowed by the Project Approvals;
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of
the Project in any manner, provided that all infrastructure
required by the Project Approvals to serve the portion of the
Property covered by the Subsequent Approval is in place or
is scheduled to be in place prior to completion of
construction;
(d) are not uniformly applied on a citywide basis to all
substantially similar types of development projects or to all
properties with similar land use designations;
(e) modify the land use from what is permitted by the City's
General Plan Land Use Element at the Operative Date of
this Agreement or that prohibits or restricts the establishment
or expansion of urban services including but not limited to
community sewer systems to the Project.
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Page 10
5.4 Modification of Approvals. Throughout the term of this Agreement,
Developer shall have the right, at its election and without risk to or
waiver of any right that is vested in it pursuant to this section, to
apply to City for modifications to Project Approvals and Subsequent
Approvals. The approval or conditional approval of any such
modification shall not require an amendment to this Agreement,
provided that, in addition to any other findings that may be required
in order to approve or conditionally approve the modification, a
finding is made that the modification is consistent with this
Agreement and does not alter the permitted uses, density, intensity,
maximum height, size of buildings or reservations and dedications
as contained in the Project Approvals.
5.5 Issuance of Building Permits. No Building Permit shall be
unreasonably withheld or delayed from Developer if Developer is in
compliance with this Agreement and the Project Approvals and
Subsequent Approvals. In addition, no Final Building Permit final
inspection or Certificate of Occupancy will be unreasonably
withheld or delayed 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 Final Building
Permit is in place or is scheduled to be in place prior to completion
of construction, the Developer is in compliance with all provisions of
this Agreement, the Project Approvals and Subsequent Approvals,
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 allocated on any annual numerical basis or on
any arbitrary allocation basis.
5.6 Moratorium on Development. Nothing in this Agreement shall
prevent City, whether by the City Council or through the initiative or
referendum process, from adopting or imposing a moratorium on
the processing and issuance of Subsequent Approvals and building
permits and on the finalizing of building permits by means of a final
inspection or certificate of occupancy, provided that the moratorium
is adopted or imposed (i) on a Citywide 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.
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6. Developer Agreements.
6.1 Development as a Residential Project. 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) ND and any subsequent or supplemental
environmental actions. Developer agrees not to apply for any non-
residential uses on the Property. The clubhouse and private
recreational facilities are considered to be part of the residential
uses.
6.2 Condition of Dedicated or Conveyed Property. All lands and
interests in land dedicated to City shall be free and clear of liens
and encumbrances other than easements or restrictions that do not
preclude or interfere with use of the land or interest for its intended
purpose, as reasonably determined by City.
6.3 Development Fee Per Unit. As a condition of the issuance of a
building permit for each residential dwelling unit within the Property,
Developer shall pay City a one-time development fee as described
herein (the “Development Fee”). The Development Fee may be
expended by City in its sole and unfettered discretion. The amount
of the Development Fee shall be Nine Thousand Two Hundred
Dollars ($9,200.00) per residential unit. The Development Fee
shall be adjusted annually commencing January 1, 2021, by the
Consumer Price Index (CPI). The annual CPI adjustment 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/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall be
made using the month of October over the prior October.
In the event there is a decrease in the referenced Index for any
annual indexing, the current amount of the fee shall remain until
such time as the next subsequent annual indexing which results in
an increase.
6.4 Traffic Mitigation Fee. As a condition of the issuance of building
permit for each residential dwelling unit within the boundaries of the
Property, Developer shall pay City a one-time traffic mitigation fee
as described herein (“Citywide Traffic Fee”). The Citywide Traffic
Fee may be expended by City in its sole and unfettered discretion.
The amount of the Citywide Traffic Fee shall be Twelve Thousand
Five Hundred Dollars ($12,500.00) per residential unit. The
Citywide Traffic Fee shall be adjusted annually commencing
January 1, 2021 and annually thereafter by the change in the
Caltrans Highway Bid Price Index (Bid Price Index) for Selected
California Construction Items for the twelve (12) month period
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available on December 31 of the preceding year (“annual
indexing”). In the event there is a decrease in the Bid Price Index
for any annual indexing, the current amount of the fee shall remain
until such time as the next subsequent annual indexing which
results in an increase.
6.5 Los Angeles Avenue Area of Contribution (LAAOC) Fees.
Developer shall pay the LAAOC fee in effect at the time of building
permit issuance for each residential dwelling unit within the
Property.
6.6 Air Quality Fees. Developer agrees to pay to City a one-time air
quality fee, as described herein (“Air Quality Fee”), in satisfaction of
the Transportation Demand Management Fund requirement for the
Project. The Air Quality Fee may be expended by City in its sole
discretion for reduction of regional air pollution emissions.
The Air Quality Fee shall be One Thousand Seven Hundred Nine
Dollars ($1,709.00) per residential dwelling unit within the Property
to be paid prior to the issuance of a building permit for each
residential dwelling unit in the Project. If the Air Quality Fee is not
paid by January 1, 2021, then commencing on January 1, 2021,
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/Long Beach/Anaheim metropolitan area during the prior
year. The calculation shall be made using the month of October
over the prior month of October. 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.
6.7 Park Fees. Prior to the issuance of the building permit for each
residential dwelling unit within the Property, Developer shall pay a
one-time fee in lieu of the dedication of parkland and related
improvements (“Park Fee”). The amount of the Park Fee shall be
Ten Thousand Five Hundred Dollars ($10,500.00) for each
residential dwelling unit within the Property. If the Park Fee is not
paid by January 1, 2021, the Park Fee shall be adjusted annually
commencing January 1, 2021 by the larger increase of a) or b) as
follows:
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(a) The change in the CPI. The change 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/Long Beach/Anaheim metropolitan
area during the prior year. The calculation shall be made
using the month of October over the prior October; or
(b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index (Bid Price Index) for
Selected California Construction Items for the twelve (12)
month period available on December 31 of the preceding
year (annual indexing).
In the event there is a decrease in both of the referenced
Indices for any annual indexing, the Park Fee shall remain at
its then current amount until such time as the next
subsequent annual indexing which results in an increase.
Developer agrees that the above-described payments shall
be deemed to satisfy the parkland dedication requirement
set forth in California Government Code Section 66477 et
seq. for the Property.
6.8 Community Services Fee. As a condition of issuance of a building
permit for each residential dwelling unit within the boundaries of the
Project, Developer shall pay City a one-time community services
fee as described herein (Community Services Fee). The
Community Services Fees may be expended by City in its sole and
unfettered discretion. The amount of the Community Services Fees
shall be Two Thousand Seven Hundred Dollars ($2,700.00) per
residential dwelling unit. Commencing on January 1, 2021, and
annually thereafter, the Community Services Fee shall be adjusted
by any increase in the Consumer Price Index (CPI) until all
Community Service Fee 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/Long Beach/Anaheim
metropolitan area during this prior year. The calculation shall be
made using the month of October over the prior month of October
or in the event there is a decrease in the CPI for any annual
indexing, the Community Service Fee shall remain at its then
current amount until such time as the next subsequent annual
indexing which results in an increase.
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6.9 Art in Public Places Fee. Developer agrees to pay the Art in Public
Places Fee (Art Fee) in effect at the time of building permit
issuance for each building prior to the issuance of the building
permit for that residential building within the Project consistent with
City Resolution No. 2005-2408 or any Successor Resolution (1.0
percent of total building valuations excluding land value and off-site
improvement costs).
6.10 Other Development and Processing Fees. In addition to fees
specifically mentioned in this Agreement, Developer agrees to pay
all City capital improvement, development, and processing fees at
the rate and amount in effect at the time the fee is required to be
paid. Said fees include but are not limited to Library Facilities Fees,
Police Facilities Fees, Fire Facilities Fees, drainage, entitlement
processing fees, and plan check and permit fees for buildings and
public improvements. Developer further agrees that unless
specifically exempted by this Agreement, it is subject to all fees
imposed by City at the Operative Date of this Agreement and such
future fees imposed as determined by City in its sole discretion so
long as such fees are imposed on projects similar to the Project or
on property similar to the Property.
6.11 Processing Fees. On the Operative Date, Developer shall pay all
outstanding City processing costs related to preparation of this
Agreement, the Project Approvals and the ND.
6.12 Community Facilities District.
(a) It is the mutual intent of the Parties that the development of
the Project will not have any impact on or require any
contribution from the General Fund of the City. To facilitate
such intent, the City and Developer shall use reasonable
efforts to form a Community Facilities District(s) (“CFD”),
pursuant to Chapter 2.5 of Part 1 of Division 2 of the
California Government Code (the “CFD Act”), for the
purposes of financing facilities and services required to be
constructed, provided or funded under this Agreement, as
the City determines are lawfully and appropriately financed
by the CFD. Such facilities and services may include but are
not limited to fees, construction and installation of
landscaping, and future costs for the maintenance of
landscaping and irrigation of the landscaped area.
(b) Developer shall: (i) file with the City a petition for the
[formation of / annexation to] the CFD, (ii) provide any
deposit required by Section 53318 of the CFD Act, (iii) not
oppose formation of the CFD and (iv) vote in favor of the
special tax to fund the CFD.
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(c) Developer acknowledges and agrees that the City will not
accept any improvements or facilities to be maintained by
the CFD nor shall the Developer receive any payments from
the CFD for any improvements or facilities until such facilities
and improvements have been inspected and the City
determines in its reasonable discretion, that such
improvements and facilities have been completed in
accordance with the applicable plans, and have no liens
outstanding.
(d) Prior to approval of the first final map for the Project, the City
Council at its sole discretion may determine that all or a part
of the improvements planned to be included in the CFD may
instead be placed in the Homeowners’ Association for the
Project.
6.13 Densities Allowed for Development and Affordable Housing.
(a) Developer agrees that densities vested and incentives and
concessions received in the Project Approvals include all
densities available as density bonuses and all incentives and
concessions to which Developer is entitled under the
Moorpark Municipal Code, Government Code Sections
65915 through 65917.5 or both; Developer shall not be
entitled to further density bonuses or incentives or
concessions and further agrees, in consideration for the
density bonus obtained through the Project Approvals that is
greater than would otherwise be available, to provide eleven
(11) housing units, with a minimum of 1,800 square feet and
three (3) bedrooms, 2.5 baths each, affordable to low
income households (not to exceed 80% of median income
adjusted for family size). These eleven (11) housing units
may be referred to as affordable units or units affordable to
low income households or required affordable units.
(b) Developer explicitly acknowledges that its agreement to
construct these affordable units is given both as specific
consideration for both the density bonus and in general as
consideration for City’s willingness to negotiate and enter
into this Agreement and for the valuable consideration given
by City through this Agreement. Developer further
acknowledges that its agreement to construct these
affordable units is not the result of an existing policy or
regulation imposed by City but instead is the result of arm’s
length negotiation between Parties.
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(c) Developer further agrees that it shall provide the required
number of affordable housing units as specified above
regardless of the cost to acquire or construct said housing
units. Developer further agrees that City has no obligation to
use eminent domain proceedings to acquire any of the
required affordable housing units and that this Subsection
6.13 is specifically exempt from the requirements of
Subsection 7.2.
(d) Prior to recordation of the first Final Map for this Project, the
parties agree to execute an Affordable Housing Purchase
and Sale Agreement (Affordable Housing Agreement) that
sets forth the Developer’s and City’s obligations and
provides procedures and requirements to ensure that all of
the required affordable housing units are provided consistent
with this Agreement and applicable State laws and remains
affordable for the longest feasible time. The Affordable
Housing Agreement shall include but not be limited to the
following items: Initial Purchase Price, market value, buyer
eligibility, affordability and resale covenants and restrictions,
equity share and second trust deed provision, respective role
of City and Developer, the responsibility of providing the
affordable units by each developer in the event of
successors and/or assigns to this Agreement, quality of and
responsibility for selection of amenities and applicability of
home warranties to meet all or a portion of its obligation and
any other items determined necessary by the City.
Developer shall pay the City’s direct costs for preparation
and review of the Affordable Housing Agreement up to a
maximum of ten-thousand Dollars ($10,000.00).
(e) All affordable units shall meet the criteria of all California
Health and Safety Code statutes and implementing
regulations pertaining to for-sale Affordable Housing units so
as to qualify as newly affordable to low income households
and to satisfy a portion of the City’s Regional Housing Needs
Allocation (RHNA) obligation. The affordable units required
by this Agreement are consideration for City’s entry into this
Agreement and therefore none of the affordable units shall
duplicate or substitute for the affordable housing requirement
of any other developer or development project. All
subsequent approvals required of City under this Subsection
6.13 shall be made at City’s sole discretion. If any conflict
exists between this Agreement and the Affordable Housing
Agreement required by and negotiated pursuant to this
Agreement or the conditions of approval for Tentative Tract
Map No. 5869 and/or RPD Permit No. 2014-02, then the
Affordable Housing Agreement shall prevail.
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(f) In the event the monthly Homeowner Association (HOA)
fees exceed two hundred dollars ($200.00), Developer shall
deposit one hundred twenty dollars ($120.00) for each dollar
or portion thereof of the monthly HOA fees that are in excess
of two hundred dollars ($200.00) into a City administered
trust account to assist with future HOA fees for each affected
unit.
(g) The Affordable Sales Price for low-income buyers shall not
exceed affordable housing cost, as defined in Sec.
50052.5(b)(3) of California Health and Safety Code. Section
50052.5(h) of the California Health and Safety Code
provides that an appropriate household size in terms of
determining purchase price is one more person than the
number of bedrooms. This means that the pricing for a three
(3) bedroom unit will be based on a household of four (4)
regardless of the actual size of the household purchasing the
unit. For example, the monthly “affordable housing cost” for
a three (3) bedroom unit would be 30% times 70% of the
current median income for a household of four (4) in Ventura
County, divided by twelve (12). This monthly amount
includes the components identified in Section 6920 of Title
25 of the California Code of Regulation shown below (See
Section 50052.5(c) of the Health and Safety Code). The
Affordable Sales Price for a low income household
purchasing a three (3) bedroom unit under current market
conditions, based upon the following assumptions:
Item Detail Amount 3 Bedroom
Affordable
Sale $214,000.00
Down Payment 5% of Affordable Sales Price $10,700.00
Loan Amount Affordable Sales Price less
Down $203,300.00
Interest Rate 4.65%
Monthly
Property Tax
1.25% of Initial
Purchase Price 223.00
LMD Not Currently N/A
HOA 200.00
Fire Insurance 20.00
Maintenance 30.00
Utilities 186.00
Low Income Buyer
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(h) The assumptions associated with the above purchase price
figures for low income households include a 5% down
payment, based on Affordable Sales Price for a three (3)
bedroom unit, mortgage interest rate of 4.65%, no mortgage
insurance, property tax rate of 1.25%, based on Affordable
Sales Price, homeowners’ association dues of $200.00 per
month, fire insurance of $20.00 per month, maintenance
costs of $30.00 per month, and utilities of $186.00 per month
for a three (3) bedroom unit.
(i) 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 both low income and very low income buyers.
Furthermore, if “affordable housing cost”, as defined in
Section 50052.5 of California Health and Safety Code,
should change in the future, the above guidelines will be
modified. The Affordable Housing Purchase and Sale
Agreement negotiated pursuant to this Agreement shall
address this potential change.
Developer acknowledges that amounts listed in the “Low
Income Buyer” table in Subsection 6.13(g), above, are for
illustration purposes only and are subject to change.
(j) In the event the City, at its sole discretion purchases one or
more of the units from Developer in lieu of a qualified buyer,
the Affordable Sales Price shall be based on a household
size appropriate to the number of bedrooms in the unit being
purchased by the City, consistent with all requirements of
this Subsection 6.13. Developer agrees that, pursuant to
City’s rights under this Agreement and/or the Affordable
Housing Agreement and 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 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.
(k) Developer agrees that City shall be responsible at its sole
discretion for marketing the affordable units, selecting and
qualifying eligible buyers for these units, and overseeing the
escrow processes to sell the affordable units to low income
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households; and providing the forms of Deed of Trust,
Promissory Note, Resale Refinance Restriction Agreement
and Option to Purchase Property and Notice of Affordability
Restriction on Transfer of Property and all necessary
contracts and related documents to ensure that the
referenced affordable units remain occupied by low income
households for the longest feasible time (the “Affordability
Documents”). Developer further agrees that the difference
between the Affordable Sales Price (as referenced in this
Agreement) paid by a qualified buyer and market value shall
be retained by City as a second deed of trust.
(l) Developer shall pay closing costs for each affordable unit,
not to exceed eight thousand dollars ($8,000.00). Beginning
January 1, 2021 and on January 1st for each year thereafter,
the maximum eight thousand dollars ($8,000.00) 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/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall
be made using the month of October over the month of
October. In the event there is a decrease in the CPI for any
annual indexing, the closing costs for each affordable unit
shall remain at its then current amount until such time as the
next subsequent annual indexing which results in an
increase. The referenced Developer funded closing costs
shall be for the benefit of qualified buyers (or City in lieu of
qualified buyers if one or more of the required units are
purchased by the City) 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.
(m) Developer warrants that the quality of materials and
construction techniques of the affordable units sold to the
qualified low income buyers, or City shall in all manner be
identical to that of all other units constructed in this Project
and subject to all Conditions of Approval and shall meet all
Building Codes.
(n) The City shall have the same choices of basic finish options
as purchasers of market rate units in this Project and final
walk-through approval of condition of unit before close of
sale. Any basic finish options provided to buyers of market
rate units shall be provided to City or buyer(s) of the
affordable units, including but not limited to color and style
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choices for carpeting and other floor coverings, counter tops,
roofing materials, exterior stucco and trim of any type,
fixtures, and other decorative items. City staff person
responsible for affordable housing will select basic finish
options for the affordable units.
(o) Developer agrees that all warranties for the affordable units
shall be the same or better than those for the market rate
units, 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 home warranties for the affordable units
shall be the same duration as the warranties for the market
rate units and not less than the maximum time required by
State law but in no event less than ten (10) years.
(p) Developer agrees to provide the same amenities for the
affordable units (purchased by the low income buyer, or City)
as those amenities that are provided for the market rate
units. The amenities shall include but not be limited to
concrete roof tiles; air conditioning/central heating; garage
door opener; fireplaces; washer/dryer hook-ups; garbage
disposal; built-in dishwasher, stove, oven and microwave;
windows; wood cabinets; shelving; counter-tops; floor
coverings; window coverings; electrical outlets, lighting
fixtures and other electrical items; plumbing fixtures including
sinks, toilets, bathtubs and showers; and door and cabinet
hardware, and shall all be of the same quality and quantity
as provided in the Project’s market rate units as determined
by the City’s Community Development Director and City staff
person responsible for City’s Affordable Housing Programs.
(q) The floor plan and size of the units shall be approved by the
Community Development Director and City staff person
responsible for City’s Affordable Housing Programs, and
include a downstairs bathroom.
(r) 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 income
households and related matters. Developer agrees if it sells
any of the affordable units directly to qualified low income
buyers, all requirements of the buyer, including, but not
limited to, completion of a City approved homebuyer
education training workshop and the Affordability
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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. City has sole discretion in selecting
lenders, escrow and title companies and real estate
professionals to assist with the sale of the affordable units.
(s) In the event City is unable to provide a qualified buyer when
one of the low-income units has received final inspection
approval, Developer shall be allowed to continue to obtain
building permits and/or final inspection approval for the non-
affordable units. Any low-income units remaining unsold six
(6) months after the final inspection approval of the 69th unit
will be purchased by the City, as provided for in the
Affordable Housing Agreement. Developer is required to
maintain low-income units in move-in condition until such
time as the City finds a buyer. For purposes of this
schedule, final inspection approval requires approval of the
City’s Building Official and Community Development
Director.
(t) Developer also agrees that subsidiaries, divisions or
affiliates of Developer may not be used to provide lending,
escrow or other services relevant to the purchase
transactions for the affordable units.
(u) If a qualified low income buyer is identified by City prior to or
at the time of final inspection approval of any of the
affordable units, Developer shall open escrow for the sale of
said unit as provided for in the Affordable Housing
Agreement, and shall enter escrow directly with the buyer
identified by City, and proceed to closing of said escrow. If a
qualified low income buyer has not been identified at the
time Developer receives final inspection approval for an
affordable unit, City, at its option, may agree to purchase the
affordable unit required to be provided by Developer for the
amount and at the time as provided for in this agreement.
Developer and City agree to use their best efforts to
complete the close of escrow within forty-five (45) days of
the final inspection approval of an affordable unit.
(v) Developer shall satisfy all mechanic’s, laborer’s, material
man’s, supplier’s, or vendor’s liens and any construction loan
or other financing affecting any unit or lot in the Project
which has been designated for an affordable unit, before the
close of escrow for that affordable unit.
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(w) Developer agrees that the required construction of the low
income affordable units must receive final inspection
approval by Developer on terms consistent with this
Agreement and the Affordable Housing Agreement as
specified in the following schedule:
Prior to
Occupancy of
Number of
Affordable Units
20th Unit 3
40th Unit 3
60th Unit 3
69th Unit 2
Total 11
(x) The required affordable units within the Project shall be
designated as unit numbers in the Buildings within the
Project consistent with Exhibit “C” attached hereto and
incorporated herein. The City Manager or the City
Manager’s designee may approve in writing different unit
numbers within the Project so long as the unit contains no
less than 1,800 square feet, with a minimum of three (3)
bedrooms and 2.5 baths each.
(y) Developer shall provide the initial buyer of each Completed
Unit in the Project a disclosure that the Project includes
eleven (11) residential dwelling units that will be sold to
qualified low income households. The disclosures shall also
state that these eleven (11) residential dwelling units have
deed restrictions recorded on their title that restrict the re-
sale of these units only to qualified low income buyers. The
form and language of the disclosure shall be approved by
the City Attorney and Community Development Director and
shall conform to all requirements of the applicable State
agencies pertaining to real estate disclosures.
6.14 Annual Review Procedures. 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 approved Project
conditions of approval.
6.15 Eminent Domain. Developer agrees that any election to acquire
property by eminent domain shall be at 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.
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6.16 Implementation Plan. 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 a plan to guarantee the Developer agreements contained in
this Agreement and in the conditions of approval for the VTTM and
RPD. The plan shall address the entities responsible and method
and timing of guarantee for each component of Developer’s
obligations and is subject to City approval at its sole discretion.
6.17 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for the Project shall be made
without reservation, and Developer expressly waives the right to
payment of any such fees under protest pursuant to California
Government Code Section 66020 and statutes amendatory or
supplementary thereto. Developer further agrees that the fees it
has agreed to pay pursuant to Subsections 6.3, 6.4 and 6.8 of this
Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto.
6.18 CPI Indexes. In the event the “CPI” referred to in Subsections 6.3,
6.4, 6.6, 6.7 and 6.8 or the Bid Price Index referred to in
Subsections 6.4 and 6.7 are discontinued or revised, a successor
index with which the “CPI” and or Bid Price Index are replaced shall
be used in order to obtain substantially the same result as would
otherwise have been obtained if either or both the “CPI” and Bid
Price Index had not been discontinued or revised.
6.19 City Ability to Modify. Developer acknowledges the City’s ability to
modify the development standards and to change the General Plan
designation and zoning of the Property upon the termination or
expiration of this Agreement (if the Project has not been built), and
Developer hereby waives any rights they might otherwise have to
seek judicial review of such City actions to change the development
standards, General Plan designation and zoning to those
development standards and density of permitted development to
that in existence prior to the approval of GPA No. 2014-01 and ZC
No. 2014-01.
6.20 Homeowners Association. Prior to recordation of the first final map
for the Property, if required by City at its sole discretion, Developer
shall form one or more property owner associations to assume
ownership and maintenance of private recreation, private streets,
parking lots, landscape areas, flood control and NPDES facilities
and other amenities within the Project. The obligation of said
Homeowners Associations shall be more specifically defined in the
conditions of approval of the first tentative tract or parcel map for
the property.
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7. City Agreements.
7.1 Commitment of Resources. At Developer’s expense, City shall
commit reasonable time and resources of City staff to work with
Developer on the processing of applications for Project Approvals
and all Subsequent Approvals and Building Permits for the Project
area and if requested in writing by Developer shall use overtime
and independent contractors whenever possible.
7.2 Easement and Fee Title Acquisitions. If requested in writing by
Developer and limited to City’s legal authority, City at its sole and
absolute discretion shall proceed to acquire, at Developer’s sole
cost and expense, easements or fee title to land in which Developer
does not have title or interest in order to allow construction of public
improvements required of Developer including any land which is
outside City's legal boundaries. The process shall generally follow
Government Code Section 66462.5 et seq. and shall include the
obligation of Developer to enter into an agreement with City,
guaranteed by cash deposits and other security as the City may
require, to pay all City costs including but not limited to, acquisition
of the interest, attorney fees, appraisal fees, engineering fees, City
staff costs, and City overhead expenses of 15% on all out-of-pocket
costs.
7.3 Concurrent Entitlement Processing. City agrees that whenever
possible as determined by City in its sole discretion to process
concurrently all land use entitlements for the Project so long as the
application for such entitlements are “deemed complete” in
compliance with the requirements of Chapter 4.5 Review and
approval of Development Projects (Permit Streamlining Act) of the
California Government Code.
7.4 Park Fees. City agrees that the Park Fee required under
Subsection 6.7 of this Agreement meets all of Developer's
obligations under applicable law for park land dedication.
7.5 Reimbursements from other Developments. 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 and at
City’s discretion may include provisions requiring such
reimbursement to Developer for the same in such other
development project conditions of approval.
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7.6 Early Grading Agreement. The City Manager is authorized 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 the conditions of the Project approved tentative map 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;
construction of on-site and off-site improvements consistent with
the City Council approved Project and Tentative Map. 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.
8. Supersession of Agreement by Change of Law. In the event that any
state or federal law or regulation enacted after the date the Enabling
Ordinance was adopted by the City Council prevents or precludes
compliance with any provision of the Agreement, such provision shall be
deemed modified or suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by Developer with the provisions of this Agreement, the
Agreement shall be reviewed annually in accordance with Moorpark
Municipal Code Chapter 15.40. of City or any successor thereof then in
effect. The failure of City to conduct any such annual review shall not, in
any manner, constitute a breach of this Agreement by City, diminish,
impede, or abrogate the obligations of Developer hereunder or render this
Agreement invalid or void. At the same time as the referenced annual
review, City shall also review Developer’s compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its obligations
hereunder, other than payment of fees, shall be excused during any
period of "Excusable Delay", as hereinafter defined, provided that the
Party claiming the delay gives written 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 City or other
local government entity 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 delay by other third party entities which are required
to approve plans or documents for Developer to construct the Project, or
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restrictions imposed or mandated by such other third party entities or
governmental entities other than City, (including but not limited to, Ventura
County Watershed Protection District); 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 Project.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have
breached this Agreement if it:
(a) Practices, or attempts to practice, any fraud or deceit upon
City; or willfully violates any order, ruling or decision of any
regulatory or judicial body having jurisdiction over the
Property or the Project, provided that Developer may contest
any such order, ruling or decision by appropriate
proceedings conducted in good faith, in which event no
breach of this Agreement shall be deemed 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
within five (5) business days after City gives written notice to
Developer that the same is due and payable; or
(c) Breaches any of the other provisions of this Agreement and
fails to cure the same within thirty (30) days after City gives
written notice to Developer of such breach (or, if the breach
is not able to be cured within such thirty (30) day period,
Developer fails to start to cure the same within thirty (30)
days after delivery of written notice by City of such breach or
fails to thereafter diligently prosecute the cure to
completion).
11.2 Default by City. City shall be in breach of this Agreement if it
breaches any of the provisions of this Agreement and fails to cure
the breach within thirty (30) days after Developer gives written
notice to City of the breach (or, if the breach is not able to be cured
within such thirty (30) day period, City fails to start to cure the same
within thirty (30) days after delivery of written notice from Developer
of such breach or fails to thereafter diligently prosecute the cure to
completion).
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11.3 Content of Notice of Violation. Every notice of breach shall state
with specificity that it is given pursuant to this section of this
Agreement, the nature of the alleged breach, and the manner in
which the breach may be satisfactorily cured. Every notice shall
state the applicable period to cure. The notices shall be given 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 of 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 this Agreement shall be limited to the
remedies expressly set forth in this subsection.
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 the Developer shall
be injunctive relief and/or specific performance. In addition, and
notwithstanding any other language of this Agreement, if the breach
is of Subsection 6.13 or 6.14 of this Agreement, City shall have the
right to withhold the issuance of building permits from the date that
the notice of violation was given pursuant to Subsection 11.3 hereof
until the date that the breach is cured as provided in the notice of
violation.
Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against Developer if it violates any
City ordinance or State statute.
12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this
Agreement shall not prevent or limit Developer, in any manner, at
Developer’s sole discretion, from encumbering the Property or any
portion thereof or any improvements thereon then owned by such
person with any mortgage, deed of trust or other security device
(“Mortgage”) securing financing with respect to the Property or such
portion. Any mortgagee or trust deed beneficiary of the Property or
any portion thereof or any improvements thereon and its
successors and assigns (“Mortgagee”) shall be entitled to the
following rights and privileges.
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12.2 Lender Requested Modification/Interpretation. City acknowledges
that the lenders providing financing to Developer for the Property
may request certain interpretations and modifications of this
Agreement. City therefore agrees upon request, from time to time,
to meet with Developer and representatives of such lenders to
discuss in good faith any such request for interpretation or
modification. The City will not unreasonably withhold its consent to
any such requested interpretation or modification provided such
interpretation or modification is consistent with the intent and
purposes of this Agreement, provided, further, that any
modifications of this Agreement shall be subject to the provisions of
this Agreement pertaining to modifications and amendments.
12.3 Mortgage Protection. This Agreement shall be superior and senior
to the lien of any Mortgage. Notwithstanding the foregoing, no
breach of this Agreement shall defeat, render invalid, diminish or
impair the lien of any binding and effective against the Mortgagee
and every owner of the Property, or part thereof, whose title thereto
is acquired by foreclosure, trustee sale or otherwise; provided,
however, Mortgagee and such owner shall not be responsible for
any matters that occurred prior to their acquisition of the Property or
such portion.
12.4 Written Notice of Default. If a non-monetary default is not cured by
Developer within thirty (30) days after written notice by City to
Developer or a monetary default is not cured with in five (5) days
after written notice by City to Developer, then each Mortgagee shall
be entitled to received written notice from City of the applicable
default by Developer under this Agreement provided the Mortgagee
has delivered a written request to the City for such notice and shall
have provided its address for notices in writing to the City. Each
such Mortgagee shall have a further right, but not the obligation, to
cure such default for an additional period of thirty (30) days after
delivery of such notice of default by City to the Mortgagee. City
shall not commence legal action against Developer by reason of
Developer’s breach without allowing the Mortgagee to cure the
same as specified herein.
13. Estoppel Certificate. At any time and from time to time, Developer may
deliver written notice to City and City may deliver written notice to
Developer requesting that such Party certify in writing that, to the
knowledge of the certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment, and (iii)
the requesting Party is not in breach of this Agreement, or if in breach, a
description of each such breach. The Party receiving such a request shall
execute and return the certificate within ten (10) days following receipt of
the notice. City acknowledges that a certificate may be relied upon by
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successors in interest to the Developer who requested the certificate and
by holders of record of deeds of trust on the portion of the Property in
which that Developer has a legal interest.
14. Administration of Agreement. Any consent or approval herein to be given
by the City may be given by the City Manager provided it is expressed and
is in writing. Any decision by City staff concerning the interpretation and
administration of this Agreement and development of the Property in
accordance herewith may be appealed by the Developer to the City
Council, provided that any such appeal shall be filed with the City Clerk of
City within ten (10) days after the affected Developer receives written
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 of City or any
successor thereof then in effect, this Agreement may be amended or
terminated, in whole or in part, by mutual consent of City and the affected
Developer.
15.1 Exemption for Amendments of Project Approvals. No amendment
to a Project Approval or Subsequent Approvals 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 and does not alter the permitted
uses, density, intensity, maximum height, size of buildings or
reservations and dedications as contained in the Project Approvals
or Subsequent Approvals.
16. Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and
agents from and against any and all losses, liabilities, fines, penalties,
costs, claims, demands, damages, injuries or judgments arising out of, or
resulting in any way from, Developer's performance pursuant to this
Agreement including, but not limited to, Developer’s construction of the
Project on the Property and construction of improvements on the City Site
and any injury sustained by any person in connection with the construction
or partial construction of buildings and improvements on the Property and
City Site.
Developer shall indemnify, defend with counsel approved by City, and
hold harmless City and its officers, employees and agents from and
against any action or proceeding to attack, review, set aside, void or annul
this Agreement, or any provision thereof, the environmental documents
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prepared and approved in connection with the approval of the Project, or
any Project Approval or Subsequent Approval or modifications thereto, or
any other subsequent entitlements for the project and including any
related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this
Agreement of which time is an element.
18. Operative Date. As described in Subsection 1.9 above, this Agreement
shall become operative on the Operative Date, being the date the
Enabling Ordinance becomes effective pursuant to Government Code
Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of
twenty (20) years commencing on the Operative Date or until one year
after the issuance of the final building permit for occupancy of the last unit
of the Project whichever occurs last, unless said term is amended or the
Agreement is sooner terminated as otherwise provided herein. Expiration
of the term or earlier termination of this Agreement shall not automatically
affect any Project Approval or Subsequent Approval or Building Permit or
Final Building Permit that has been granted or any right or obligation
arising independently from such Project Approval or Subsequent Approval
or Building Permit or Final Building Permit.
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.
Notwithstanding the foregoing, the following shall survive the expiration or
earlier termination of this Agreement: (i) all obligations arising under this
Agreement prior to the expiration or earlier termination of this Agreement;
and (ii) Subsection 6.19 of this Agreement.
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 “B” 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.
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21. Entire Agreement. This Agreement and those exhibits and documents
referenced herein contain the entire agreement between the Parties
regarding the subject matter hereof, and all prior agreements or
understandings, oral or written, are hereby merged herein. This
Agreement shall not be amended, except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision, whether or not similar; nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision.
No waiver shall be binding, unless it is executed in writing by a duly
authorized representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of
this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering
into and performing under this Agreement, it is acting as an independent
entity and not as an agent of any of the other Parties in any respect.
Nothing contained herein or in any document executed in connection
herewith shall be construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature between City and
Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into
for the sole benefit of the Parties and their successors in interest. No
other person shall have any right of action based upon any provision of
this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the
County of Ventura by the City Clerk of City within the period required by
Chapter 15.40 of the Moorpark Municipal Code of City or any successor
thereof then in effect.
27. Cooperation Between City and Developer. City and Developer shall
execute and deliver to the other all such other and further instruments and
documents as may be necessary to carry out the purposes of this
Agreement.
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28. Rules of Construction. The captions and headings of the various sections
and subsections of this Agreement are for convenience of reference only,
and they shall not constitute a part of this Agreement for any other
purpose or affect interpretation of the Agreement. Should any provision of
this Agreement be found to be in conflict with any provision of the
Purchase and Sale Agreement, the Project Approvals or the Subsequent
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. Attorneys' Fees. In the event any action, suit or proceeding is brought for
the enforcement or declaration of any right or obligation pursuant to, or as
a result of any alleged breach of, this Agreement, the prevailing Party shall
be entitled to its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such action, suit or
proceeding shall include an award thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which constitute one
and the same instrument.
33. Authority to Execute. Developer warrants and represents that to its
knowledge as of the Operative Date and with respect to each entity that is
defined as Developer: (i) it is duly organized and existing; (ii) it is duly
authorized to execute and deliver this Agreement; (iii) by so executing this
Agreement, Developer is formally bound to the provisions of this
Agreement; (iv) Developer’s entering into and performance of its
obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound; and (v) there is no existing
or threatened litigation or legal proceeding of which Developer is aware
that could prevent Developer from entering into or performing its
obligations set forth in this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Development
Agreement effective as of the Operative Date.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
SKY LINE 66 LLC,
a California limited liability company
By:
Menashe Kozar, President and Manager
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EXHIBIT “A”
LEGAL DESCRIPTION
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EXHIBIT “B”
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Menashe Kozar, President and Manager
Sky Line 66, LLC
23622 Calabasas Road, #121
Calabasas, CA 91302
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EXHIBIT “C”
LISTING OF AFFORDABLE UNITS
Unit Number Bedroom Size Unit Size (sq. ft.)
Unit 6 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 8 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 12 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 14 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 19 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 21 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
Unit 25 3 Bedrooms, plus 2 ½ Bathrooms 1,929 sq. ft.
Unit 27 3 Bedrooms, plus 2 ½ Bathrooms 1,929 sq. ft.
Unit 53 3 Bedrooms, plus 2 ½ Bathrooms 1,929 sq. ft.
Unit 65 3 Bedrooms, plus 2 ½ Bathrooms 1,929 sq. ft.
Unit 68 3 Bedrooms, plus 2 ½ Bathrooms 2,033 sq. ft.
List of eleven (11) required Affordable Units is based upon Sheet A0.1
(Building Area Analysis) of the City Council approved Architectural Plans.
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