HomeMy WebLinkAboutAGENDA REPORT 2021 0901 CCSA REG ITEM 08A SUPPLEMENTAL
MOORPARK CITY COUNCIL
SUPPLEMENTAL
AGENDA REPORT
TO: Honorable City Council
FROM: Troy Brown, City Manager
DATE: 09/01/2021 Regular Meeting
SUBJECT: Consider Ordinance Amending the Terms of a Development
Agreement Related to a Previously-Approved Residential Project
Located at 150 Casey Road in Order to Change Project to be Fully
Affordable and Consider a 55-Year Residual Loan, and Making a
Determination Pursuant to the California Environmental Quality Act
(CEQA) that a Previously-Adopted Mitigated Negative Declaration is
Applicable to the Amendment, on the Application of Chris Dart of
Danco Communities (on Behalf of Essex Moorpark Owner L.P.)
MINOR AMENDMENTS TO FIRST AMENDMENT OF DEVELOPMENT AGREENT AND
INCLUSION OF EXHIBITS
After publishing of the agenda packet on Friday, September 3, 2021, staff noted certain
inconsistencies in the language contained in the proposed development agreement
amendment for the Essex project. The inconsistencies are non-substantive in nature and
have no impact on the overall deal points, or staff recommendation related to the project.
The amendments to the First Amendment to Development Agreement are noted below:
• Section 14: Reference to Exhibit “H” has been clarified to refer back to the original
Development Agreement;
• Numbering of First Amendment document Sections has been corrected;
• Page numbering of Amended and Restated Affordable Housing Agreement has
been corrected;
• New Exhibit “D” depicting Power Lines, referenced in Section 10 of the First
Amendment, was omitted and is now attached.
Attachment:
Revised First Amendment to Development Agreement by and between the City of
Moorpark and Essex Moorpark Owner, L.P. (legislative format)
Item: 8.A.
SUPPLEMENTAL
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER’S FEES
Pursuant to Government Code §6103
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK
OWNER, L.P.
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES
HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
Ordinance No. ___
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FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF MOORPARK AND
ESSEX MOORPARK OWNER, L.P.
This First Amendment to the Development Agreement ("First Amendment”) is
made and entered into on ____________ 2021, and is an amendment to that certain
Development Agreement (“Agreement”) that was made and entered into on April 17, 2017,
and recorded on April 17, 2017 by Instrument No. 20170417-00050720-0 by and between
the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as "City"), and
ESSEX MOORPARK OWNER, L.P., a California limited liability company (“Developer”).
City and Developer are referred to hereinafter individually as "Party” and collectively as
"Parties." In consideration of the mutual covenants and agreements contained in this First
Amendment to the Agreement, City and Developer agree as follows:
1. Recitals. This First Amendment 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:
a. 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.
b. Developer is the owner of real property within the City, more
specifically described in Exhibit “A” attached hereto (referred to
hereinafter as the “Property”).
c. Prior to, and in connection with approval of the Agreement, the City
Council reviewed the project to be developed pursuant to the
Development Agreement as required by the California
Environmental Quality Act (“CEQA”.) The City Council found that
the Mitigated Negative Declaration (“MND”) and Mitigation
Monitoring and Reporting Program (“the MMRP”) adopted by
Resolution No 2007-2611 to be applicable to the Agreement and that
no changes or new information within the scope of State CEQA
Guidelines Section 15162 required the preparation of a new or
subsequent environmental document in connection with the
approval of the Development Agreement.
d. Prior to approval of the Agreement, the City had approved General
Plan Amendment No. 2004-05 (“GPA 2004-05”), Zone Change No.
2004-04 (“ZC 2004-04”), and Residential Planned Development
Permit No. 2012-02 (“RPD 2012-02”), including all subsequently
approved modifications and permit adjustments to RPD 2012-02 and
all amendments thereto (collectively “the Project Approvals”;
Ordinance No. ___
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individually “a Project Approval”) to provide for the development of the
Property with a 200-unit residential apartment complex and the
construction of certain off-site improvements in connection therewith
(“the Project”).
e. Thereafter, the Parties entered into the Agreement with respect to the
Property on April 7, 2017, and the Agreement was recorded on April
17, 2017 by Instrument No. 20170417-00050720-0.
f. In order for Developer to achieve a financial plan to construct the
Project, as well as to provide the housing opportunities for residents
and to assist in advancing the City’s state-certified Housing Element,
the Parties desire to amend the Agreement to change the Project from
one that provided that fifty (50) units to be affordable to qualifying
income families to one that provides that 200 units, one hundred
percent (100%) of which to be affordable to qualifying income
families and thereby meet the diverse housing needs of the
community, except for two onsite property manager units which shall
be unrestricted.
g. In consideration of the increase in the number of affordable housing
units to be included in the Project, the City has agreed to provide
reductions in certain development impact fees and to provide for a
deferral of some development impact fees in the form of a long-term
loan to the Developer, which changes are reflected in this First
Amendment.
h. On July 27, 2021, the Planning Commission of the City commenced
a duly noticed public hearing on the environmental determination,
and this First Amendment, and at the conclusion of the hearing
recommended approval of the environmental determination and this
First Amendment.
i. On September 1, 2021, the City Council commenced a duly noticed
public hearing on the environmental determination and this First
Amendment, and at the conclusion of the hearing, made an
environmental determination introduced Ordinance No. ___ to
approve this First Amendment. On September 15, 2021, the City
Council adopted Ordinance No. ___ approving this First
Amendment.
2. Conditions to the Effectiveness of this First Amendment. In addition to the
condition in Section 16 of this First Amendment, t he effectiveness of this
First Amendment is conditioned upon the occurrence of the following on
or before October 29, 2022: (i) the sale of the Property to the Affordable
Housing Owner (as defined below); (ii) the assignment of the existing
Affordable Housing Agreement to the Affordable Housing Owner and the
Ordinance No. ___
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execution and recording of the Amended and Restated Affordable Housing
Agreement attached hereto as Attachment “4”Exhibit “D” (hereinafter
referred to as the “Restated Affordable Housing Agreement”); (iii) the
execution and delivery by Affordable Housing Owner of a promissory note
and deed of trust in the forms attached hereto as Attachment “5”Exhibit “E”
(hereinafter referred to as the “City Loan Note” and the “City Loan Deed of
Trust”), and the recording of such City Loan Deed of Trust against the
Property (excluding the City Site); and (iv) the conveyance by Affordfable
Housing Owner to City of the City Site.
3. Amendment of Section 1.5. Section 1.5 of the Agreement is amended to
read as follows:
All of the units at the Project (except onsite manager’s units) shall be
Affordable Units rented to individuals and families whose incomes do not
exceed those specified by the Restated Affordable Housing Agreement at
rents no greater than those set forth in the Restated Affordable Housing
Agreement (the “Affordable Units”) or the Regulatory Agreements (as
defined below) encumberinig the Property (it being understood that the
rents under the Restated Affordable Housing Agreement shall apply to the
units restricted thereunder if they are lower than other Regulatory
Agreements). The Project shall be restricted and encumbered by both the
Restated Affordable Housing Agreement and such Regulatory
Agreements. The City and Developer acknowledge and agree that the
Developer shall apply for, qualify, develop and finance the Project in a
manner that qualifies for tax exempt bond financing and federal low-
income housing tax credits.
4. Amendment of Section 3.2. Section 3.2 of the Agreement is amended to
read as follows:
Restrictions on Transfer. The restrictions contained in this Agreement
placed upon any Transfer to any Transferee are imposed because the
qualifications and identity of Developer are of particular concern to the City,
and it is because of those qualifications and identity that the City has
entered into this Agreement with Developer. Except as permitted herein,
Developer shall not Transfer all or any part of its interest in or rights under
this Agreement, and/ or any part of its interest in or rights to the Site and/or
any of the Improvements constructed thereon, without the prior written
approval of City. City’s approval shall be granted or withheld in City' s
discretion, but shall not be unreasonably withheld, delayed or conditioned.
Following a Transfer pursuant to this Agreement with City consent and the
written assumption by the Transferee of the obligations Transferred, the
Transferor shall be released from any further liability thereafter arising with
respect to the obligations Transferred. At any time Developer desires to
effect a Transfer requiring the consent of City under this Agreement,
Developer shall, except as expressly provided below in this Section,
Ordinance No. ___
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request consent from the City in writing and shall submit to City any
proposed agreement evidencing the proposed Transfer (collectively, the
"Transfer Documents"). City agrees to notify Developer in writing of its
decision with respect to Developer's request for consent to such Transfer,
as promptly as possible, and, in any event, not later than thirty (30) days
after City receives the Developer's written request for consent to the
transfer and the Transfer Documents; provided, that, if City requires
additional time, it may unilaterally extend the approval or disapproval of
such Transfer for up to an additional thirty (30) days by providing written
notice to Developer of such required extension within the initial thirty (30)
day period. Notwithstanding the foregoing, Developer has entered into an
Agreement For Purchase and Sale and Escrow Instructions (“Danco
Purchase Agreement”) with Danco Homes LLC (“Danco ”), a developer
experienced in the development and operation of low -income multifamily
housing communities. Pursuant to the Danco Purchase Agreement,
Developer shall sell the Property to a limited partnership (the “Affordable
Housing Owner”) that has Danco or its affiliate as the administrative
general partner to acquire, own, and operate the Project in accordance
with this Agreement and the Restated Affordable Housing Agreement. The
Affordable Housing Owner intends to finance the costs of development of
the Project in part with tax credit equity and tax-exempt bond financing and
the entire Project will be restricted to low-income use pursuant to
regulatory agreements with the California Tax Credit Allocation Committee
and the issuer of the tax-exempt bonds (the “Regulatory Agreements”).
The Developer intends to assign all of its rights, title, interest and
obligations under this Agreement and the Restated Affordable Housing
Agreement and their accompanying exhibits to the Affordable Housing
Owner and the Affordable Housing Owner shall execute and record the
Restated Affordable Housing Agreement concurrently with the acquisition
of the Property from Developer. Upon such assignment, all references to
the Developer hereunder shall be a reference to the Affordable Housing
Owner. The sale of the Property and the related assignments of this
Agreement and the Restated Affordable Housing Agreement to the
Affordable Housing Owner are hereby approved by the City, subject only
to City’s approval of the Transfer Documents and receipt of a copy of the
limited partnership agreement and LP-1 of the Affordable Housing Owner.
5. Amendment of Section 3.3. Section 3.3 of the Agreement is amended to
read as follows:
No Other, Separate Conveyance of a Portion of the Property or Project.
Except for the conveyance to the Affordable Housing Owner, Developer
shall not convey any portion of the Property or Project separately from any
other portion but shall only convey any interests concurrently and to the
same purchaser, and only to a purchaser reasonable approved in writing
by City (which will consider the reputation and experience of the purchase
in owning and operating affordable rental units), and as provided in Section
Ordinance No. ___
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3.2 and 3.4. As a condition to any conveyance by Developer, Developer
shall execute, acknowledge and record a separate agreement (i.e.,
Assumption Agreement, whereby the Transferee agrees to assume all
obligations of the Agreement.
6. Amendment of Section 3.4. Section 3.4 of the Agreement is amended to
read as follows:
Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer’s interest in the Property to the Affordable Housing Owner or
any other single purchaser (or any such purchase or subsequent
purchaser’s sale of the entire property), Developer or any such subsequent
purchaser (as applicable), shall be released from its obligations hereunder
with respect to the Property subsequent to the effective date of the sale or
transfer, provided that the seller or transferor (i) was not in breach of this
Agreement at the time of the sale or transfer, and (ii) prior to the sale or
transfer, delivered to City an Assumption Agreement, duly executed by
purchaser or transferee and notarized by a notary public, where the
purchase expressly assumes the obligations under this Agreement with
respect to the Property. Failure to provide an Assumption Agreement
hereunder shall not negate, modify or otherwise affect liability of the
purchaser or transferee pursuant to this Agreement. Nothing contained
herein shall be deemed to grant to City discretion to approve or deny any
such sale or transfer, except as otherwise provided in this Agreement.
7. Amendment of Section 6.3. Section 6.3 of the Agreement is amended to
read as follows:
Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential unit within the boundaries of 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 Eight Thousand Six Hundred seventy-five dollars ($8,675.00) per
residential unit. Beginning in 2025, the fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
(a) The Consumer Price Index (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 October.
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
Ordinance No. ___
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In the event there is a decrease in both of the referenced Indices 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.
8. Amendment of Section 6.7. Section 6.7 of the Agreement is amended to
read as follows:
Park Fees and Public Art Fee. 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 Eight Thousand six
hundred seventy-five Dollars ($8,675.00) for each residential dwelling unit
within the Property. If the Park Fee is not paid by January 1, 2025, the Park
Fee shall be adjusted annually commencing January 1, 2025 by the larger
increase of (a) or (b) as follows:
(a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, f or
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.
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
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 at California
Government Code Section 66477 et seq. for the Property. Developer also
understands that because the above-described payments shall be deemed
to satisfy applicable parkland dedication requirements, a public trail through
the Property shall not be required.
Additionally, prior to the issuance of the building permit for the first
residential dwelling unit within the Property, Developer shall pay a one -time
fee for public art, notwithstanding anything to the contrary in the City’s
municipal code (“Public Art Fee”). The amount of the Public Art Fee shall
be Four Hundred Twenty Thousand Five Hundred and No/100 Dollars
($420,500.00), and shall be payable in eight (8) increments of $52,562.50,
with each increment payable as a condition to the issuance of a building
permit for each of the eight (8) buildings in the Project. If the Public Art Fee
Ordinance No. ___
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is not paid by January 1, 2025, the Public Art Fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
(a) 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 October.
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Public Art Fee shall remain at its then current amount
until such time as the next subsequent annual indexing which results in an
increase.
9. Amendment of Section 6.23. Section 6.23 of the Agreement is amended
to read as follows:
Conveyance to City of City Site; Construction Easement. As used herein,
the term “City Site” shall mean the property described on Exhibit “B”.
Provided the City Manager shall have approved of the condition of the City
Site (and City has been inspecting the City Site pursuant to a separate Right
of Entry and Access Agreement and title to the City Site, and an owner’s
title policy for the City Site in a form reasonably acceptable to City is
committed to be issued to City at Affordable Housing Owner’s cost by a title
company acceptable to City (and with a reasonable liability amount), then
Affordable Housing Owner shall convey the City Site to City by Grant Deed
in its “as-is”, “where-is” condition and “with all faults”, without any
representations, warranties or guaranties of any nature.
If at any time the City Manager determines that a construction easement for
the City is necessary within the slope on the southerly fifteen (15) feet of the
Property for purposes of improving the City Site and City Manager requests
such an easement in writing, then Developer (or Affordable Housing Owner
as applicable) shall grant a reasonable construction easement to City which
shall not be subordinate to any deeds of trust or other liens (except liens for
property taxes and assessments not yet due) and shall expire five (5) years
after the last Certificate of Occupancy is issued (and the City Manager is
hereby authorized to execute a Certificate of Acceptance for such
easement).
10. Section 6.26 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Ordinance No. ___
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Conveyance of Land for Street Widening; Relocation and Undergrounding
of SCE Lines. Substantially concurrently with the conveyance of the
Property to Affordable Housing Owner (i.e., immediately after such
conveyance), and subject to the issuance of a reasonable owner’s title
policy to City at the cost of Affordable Housing Owner, Affordable Housing
Owner shall, in order to enable the City to widen High Street, convey to
the City by grant deed the land described as follows:
Such conveyance shall be free of all deeds of trust and other liens (except
for assessments not yet payable) but otherwise the land shall be conveyed
in its “as-is”, “where-is” condition and “with all faults”, without any
representations, warranties, or guaranties of any nature. Affordable
Housing Owner shall promptly deliver a title report for such land to City for
review.
In connection with the development of the Project, Developer shall make
commercially reasonable best efforts to relocate and underground the
existing overhead Southern California Edison (“Edison”) 66kV utility lines
and poles (“Utility Facilities”) located on the Property and the City Site at
its sole cost and expense no later than thirty-six (36) months following the
acquisition of the Property by the Affordable Housing Developer. The
Developer and City acknowledge that Edison shall determine the location
and path of the underground Utility Facilities in compliance with Edison
regulations and state law, and in the event that the hard costs (not soft
cost, including without limitation project management fees and costs, and
design, engineering and administrative fees and costs) of undergrounding
the Utility Facilities on the City Property exceeds $500,000, Developer
shall not be required to underground the Utility Facilities on the City Site
and Developer shall instead relocate the Utility Facilities as set forth in the
Utility Facility redesign by BJ Palmer & Associates and depicted on Exhibit
“D” attached hereto (the “Revised Plan”) and Developer shall pay
$400,000 to the City within thirty (30) days after completion of the
relocation of the Utility Facilities on the City Site.
11. Replacement of Section 6.35; Addition of Section 6.40. Section 6.35 of
the Agreement is hereby replaced with the following:
Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on
each anniversary thereof, Affordable Housing Owner shall pay to City a
community services fee of Eight Thousand Dollars ($8,000.00) increased
by two percent (2%) concurrently with annual payments under the City
Note (as defined in the Development Agreement).
The following new Section 6.40 is hereby added to the Agreement:
City Financing of Certain Development Fees through a Residual Receipts
Ordinance No. ___
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Loan. Developer has requested and City has agreed to finance the
payment of certain portions of City development impact fees required in
Sections 6.3 (Development Fee), and 6.7 (Park Fees and Public Art Fee)
to be paid for construction of the Project in the form of a $3,890,500 fifty-
five -year Residual Receipts Loan (the “City Residual Receipts Loan”) as
described below. The City Residual Receipts Loan shall be evidenced by
the City Loan Note and secured by the City Loan Deed of Trust, which
include a term of 55 years from completion and simple interest at 3.00%
per annum, which shall be repayable solely from the City’s pro rata share
of 50% of Residual Receipts (which will be shared by other public lenders
making loans required to finance the development). The City Manager
shall have the authority to adjust the residual receipts percentage in the
City Loan Note before it is executed in order to be consistent with the
foregoing. The City Residual Receipts Loan shall be secured by a deed of
trust encumbering the Project that is subordinate only to the liens of the
Project’s bond financing and any state agency debt that is required by
regulation to be senior to the City’s Residual Receipts Loan, and the City
Manager shall have the authority to execute reasonable subordination
agreements in connection therewith.
The term “Residual Receipts” in a particular calendar year shall mean the
amount by which Gross Revenue exceeds Annual Operating Expenses.
“Gross Revenue” means for each calendar year, all revenue, income,
receipts, and other consideration actually received by the borrower from
operation and leasing of the Project. Gross Revenue includes, but is not
limited to: (1) All rents, fees and charges paid by tenants, payments or other
rental subsidy payments received for the dwelling units, deposits forfeited
by tenants, all cancellation fees, price index adjustments and any other
rental adjustments to leases or rental agreements resulting in actual income
to Affordable Housing Owner (Borrower); (2) The proceeds of business
interruption or similar insurance; (3) Any payment received in consideration
for the leasing or other use of any portion of the Project; (4) Subject to the
rights of senior lenders, the proceeds of casualty insurance to the extent not
utilized to repair or rebuild the Project (or applied toward the cost of
recovering such proceeds); (5) Subject to the rights of senior lenders,
condemnation awards for a taking of part or all of the project for a temporary
period; and (6) Gross Revenue shall exclude tenants' security deposits,
loan proceeds, capital contributions or other similar advances.
“Annual Operating Expenses” with respect to a particular calendar year
means the following costs reasonably and actually incurred for operation
and maintenance of the project to the extent that they are consistent with
an annual independent audit performed by a certified public accountant
using generally accepted accounting principles: (1) Property taxes and
assessments imposed on the property; (2) Debt service and associated fees
currently due on a non-optional basis (excluding debt service due from
Ordinance No. ___
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residual receipts or surplus cash of the project) on loans associated with
development of the project and approved by the City in the approved
financing plan; (3) Property management fees and reimbursements, not to
exceed fees and reimbursements which are standard in the industry, and
pursuant to a management contract approved by the City; (4) Premiums for
property damage and liability insurance; (5) Any annual license or certificate
of occupancy fees required for operation of the project; (6) Annual
regulatory compliance monitoring fees payable to the City; (7) Security
services; (8) Advertising and marketing costs; (9) Cash deposited into
reserves for capital replacements of the project in an amount to be approved
by the City as part of the approved financing plan; (10) Partnership
management fees in the amount approved b y the City as part of the
approved financing plan; (11) Utility services not paid for directly by tenants,
including without limitation, water, sewer, and trash collection;
(12) Maintenance and repair, including pest control, landscaping, grounds
maintenance, painting and decorating, cleaning, common systems repair,
janitorial supplies and services; (13) Social services fees and expenses;
(14) Annual audit fees, inspection fees, or monitoring fees required in
relation to any approved financing; (15) Extraordinary operating costs
specifically approved by the City in its reasonable discretion; (16) Payments
of deductibles in connection with casualty insurance claims not normally
paid from reserves, the amount of uninsured losses actually replaced,
repaired or restored, and not normally paid from reserves; (17) Reasonable
accounting fees and legal fees; (18) Payments of Deferred Developer Fee;
and (19) Other ordinary and reasonable operating expenses approved by
the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation,
amortization, depletion or other non-cash expenses or, any amount
expended from a reserve account.
12. Amendment of Section 7.1. Section 7.1 of the Agreement is amended to
read as follows:
Commitment of Resources. At Developer’s expense, City shall use good
faith efforts to commit reasonable time and resources of City staff to work
with Developer on the expedited and parallel 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 reasonably possible. Developer
shall assume any risk related to, and shall pay the additional costs incurred
by City for, any expedited and parallel processing. City shall also use good
faith efforts to commit reasonable time and resources of City staff to work
with the Ventura County Water Protection District for the processing and
permitting of the plans for the undergrounding of the channel.
13. Deletion of Sections 7.9 and 7.17. Sections 7.9 and 7.17 of the Agreement
Ordinance No. ___
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are hereby deleted in their entirety, and each is hereby replaced with
“Intentionally Omitted.”
14. Amendment of Section 7.18. Section 7.18 of the Agreement is amended
to read as follows:
Storm Water/Flood Detention Basin. City agrees that Developer may use
the storm water/flood detention basin located on the City Property and
depicted on Exhibit “H” (attached as Exhibit H of Instrument No. 20170417-
00050720-0) for storm water/retention purposes for the Project, and City
shall execute and deliver a revocable license agreement to Developer to
that affect.
15. New Section 7.20. Section 7 is amended to add a new Section 7.20 to read
as follows:
Reporting. Following the commencement of marketing of the Units,
Developer shall provide City with quarterly reports identifying the Units
leased, and such other information as City may reasonably request (and
such reporting shall be in addition to any reporting required in the Restated
Affordable Housing Agreement). If the project is financed through tax
credits, the submittal of copies of the reports required by the Tax Credit
Allocation Committee shall satisfy the reporting requirement hereunder.
City agrees to exercise good faith efforts to assist Developer in connection
with implementation of the Developer's marketing efforts, including
assistance with promotion, marketing and affordable renter qualification
activities, and by incorporating project materials, presentations, mailings,
information and announcements into City's general housing assistance
presentations, mailings and materials; provided, that, unless City agrees
otherwise in its sole discretion, City shall not be required to develop any
separate Project focused materials or programs or incur any out-of-pocket
expenses in connection with such assistance to Developer.
16. New Exhibit for DA Exhibits D and G. Exhibits D and G to the Development
Agreement are hereby deleted and each is hereby replaced by the new
Exhibit “D” attached hereto (at the very end of this Amendment).
17. New Schedule 1. Schedule 1 of the Development Agreement (which is
referred to in Section 5.1 of the Development Agreement) is hereby
deleted and is replaced with the schedule attached hereto as Exhibit “F”.
18. Deletion of Exhibit “C”. Exhibit “C” (Purchase Agreement) attached to the
Agreement is hereby deleted in its entirety and replaced with “Intentionally
Omitted.”
2019. Operative Date of First Amendment. This First Amendment shall become
operative on th date that Ordinance No. that approves this First Agreement
Ordinance No. ___
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becomes effective pursuant to Government Code Section 36937, subject
to Section 2 of this First Amendment.
2120. Authority. By their signatures below, the individuals signing on behalf of
Developer and City warrant that they have the authority to execute this
First Amendment on behalf of Developer and City, respectively.
2221. Entire Agreement. The Development Agreement and this First
Amendment, contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements, understandings, oral
written, are hereby merged herein, except that nothing contained herein is
intended to or shall abrogate, extinguish or supersede the Affordable
Housing Agreement and any other City land use entitlements or conditions
imposed thereby that are applicable to the development of the Property.
Effect of Amendment. Except as amended herein, all other provisions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the City of Moorpark and the Developer have executed
this First Amendment to the Development Agreement on the date first above written.
CITY OF MOORPARK
Janice S. Parvin
Mayor
OWNER/DEVELOPER
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership,
Its general partner
By: Essex Management Corporation, a California corporation, its general partner
By:
Print Name: ________________
Title: _____________________
ALL SIGNATURES MUST BE NOTARIZED
Ordinance No. ___
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capac ity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lot 1 of Tract No. 5004 , in the City of Moorpark, County of Ventura, State of
California, as per Map recorded in Book 137, Pages 97 to 102 inclusive of
Miscellaneous Records (Maps) , and amended map of Tract No. 5004, recorded
in Book 146, Pages 1 through 6 inclusive of Miscellaneous Records (Maps), in the
Office of the County Recorder of said county.
APN: 513- 0- 050- 205
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EXHIBIT B
DESCRIPTION OF CITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005 -03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as
Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot “T”, Tract No. “L”, Rancho Simi as
per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of
said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed
April 30, 2009 as Instrument No. 20090430-00069389 of Official Records of said
County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following
described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No.
2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38’32”West 752.05 feet;
2nd Thence, South 27°20’34West 36.75 feet;
3rd Thence, South 89°03’54”West293.78 feet to a point in the west line of said
Parcel 1A.
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EXHIBIT C
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Essex Moorpark Owner, L.P.
c/o Essex Portfolio, L.P.
100 Park Place, Suite 200
San Mateo, CA 94403
Attention: Adam Berry
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EXHIBIT D
FORM OF AMENDED AND RESTATED AFFORDABLE
HOUSING AGREEMENT
Ordinance No. ___
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Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER’S USE
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
[AFFORDABLE HOUSING LIMITED PARTNERSHIP]
Dated as of ___________, 2021
Ordinance No. ___
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AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this
“Agreement”) is to be effective as of ________________, 2021, regardless of the date of
actual execution hereof, and is entered into by and between the CITY OF MOORPA RK,
a municipal corporation (“City”), and [AFFORDABLE HOUSING LIMITED
PARTNERSHIP], a California limited partnership (“Owner”), and shall upon the
recordation hereof, supersede and replace that certain Affordable Housing
Agreement between the City and Essex Moorpark Owner, L.P. (“Essex”) dated April
17, 2017 which was recorded on April 17, 2017 as Instrument Number 20170417 -
00050721-0 1/67 in the Official Records of Ventura County, California and was
assigned to Owner pursuant to that certain Assignment and Assumption
Agreement dated ___________, 202__ (“Assignment Agreement”).
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417 -00050720-0 in the Official Records
of the County of Ventura on on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated ______________, 2021 recorded
______________, 2021 and was assigned to the Owner pursuant to the Assignment
Agreement (the “Development Agreement”) pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager’s units) on approximately 10.57 acres (the “Property”), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 (“GPA 2004-05”) Residential
Planned Development Permit No. 2012 -02 (“RPD”), and Zone Change No. 2004-04
(“ZC”) provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the “Project”). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively referred to as the
“Project Approvals”.
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
apartment units (i.e., 198 of the 200 units) in the Project will be restricted by a federal tax
Ordinance No. ___
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credit regulatory agreement; such units being described on Exhibit 2 attached hereto by
income level and bedroom count. Two units will be manager’s units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
“Affordable Rent” shall mean the rent described in Section 2.9, subject to Section
2.10.
“Affordable Units” shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
“Agreement” shall mean this Amended and Restated Affordable Housing
Agreement.
“City” shall mean the City of Moorpark, California, a municipal corporation.
“County” shall mean Ventura County.
“County Median Income” shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by HCD (California Health and
Safety Code 50093(c) and 25 California Code of Regulations Section 6932), or if HCD
discontinues such publication, then such reasonable replacement publication as may be
selected by City in good faith.
“Density Bonus” shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
“Development Agreement” shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on on April 17, 2017, which has been amended by a First Amendment
to Development Agreement dated ______________, 2021 and recorded as Instrument
No. _____________in the Official Records of the County of Ventura.
“Extremely Low Income” shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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“Extremely Low Income Household” or “Extremely Low Income Tenant” means
individuals or households qualified on the basis of a “certification of tenant eligibility” as
certified by such individual or household, who have a gross income which does not
exceed Extremely Low Income, adjusted for household size.
“Extremely Low Income Units” means Units rented to Extremely Low Income
Households.
“HCD” shall mean the Department of Housing and Community Development
(HCD) of the State of California.
“Initial Rent-Up” shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and “Stabilization” (as defined below).
“Low Income” or “Lower Income” shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit.
“Low Income Household” or “Lower Income Household” or “Low Income Tenant”
means individuals or households qualified on the basis of a “certification of tenant
eligibility” as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
“Low Income Units” means Units rented to Low Income Households.
“Owner” shall mean [_____________], L.P., and any permitted assignee of its
rights, powers and responsibilities, or any successor in interest to any portion of or interest
in the Project or Property.
“Project” is the residential development described in RPD 2012 -02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functionally related and subordinate
facilities, and all improvements required by the Project Approvals.
“Project Approvals” is defined in Recital B above.
“Property” shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
“Stabilization” shall mean the time at which the Project achieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
“Term” shall mean from the date of recordation of this Agreement until the later of:
(i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a “non-conforming use” and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
Ordinance No. ___
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“Units” shall mean residential dwelling units.
“Utility Allowance” shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
“Very Low Income” shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
“Very Low Income Household” means individuals or households qualified on the
basis of a “certification of tenant eligibility” as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
“Very Low Income Units” means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words “hereof,” “herein,” “hereunder,” and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The us e herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, “Affordable
Housing Financing”) to finance the Project, and, although not
Ordinance No. ___
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enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager’s units) for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the “Compliance Period and
Extend Use Period”) and applicable to the tax exempt bonds (t he
“Qualified Project Period”).
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California concurrently
with the closing of the Project Financing, and Owner shall ensure that this Agreement
shall be senior in priority to any lien, encumbrance or other matter of record except for
property taxes and assessments not yet due and existing easements necessary for the
operation of the Project or as otherwise expressly approved in writing by City. The Owner
shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Affordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solarready,
water heater, built-in oven, microwave, stove, bathroom fan, , doors and door hardware,
and floor and window coverings.
Owner agrees not to convert the Project or any part thereof to any type of
common interest development, for-sale condominiums, community apartments, planned
development, stock cooperative, hotel, motel, or any type of congregate care or assisted
living facility. Owner agrees that they shall not knowingly permit any of the Units in the
Project to be used on a transient basis and shall not rent any Unit for a period of less than
thirty (30) days. At no time shall any of the Affordable Units be rented to an employee,
agent, officer, contractor of any owner of any portion of the Property or Project or of any
company affiliated with any such owner, or to any such affiliated company.
2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and approved by City which approval shall not be unreasonably
withheld, conditioned, or delayed (“Rules”). Owner shall submit such Rules to City during
the Initial Rent-Up for the City’s approval, which will not be withheld, conditioned or
delayed. Annually, Owner shall submit any amendments, modifications or changes t o
such Rules to the City at least forty-five (45) days prior to their proposed effective date
Ordinance No. ___
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and all of such amendments, modifications and changes shall be subject to the City’s
prior written consent, which will not be withheld, conditioned or delayed. I f City does not
consent, City shall specify the reasons in writing so that Owner can revise the
amendment(s), modification(s) or change(s) and re-submit them for City approval, which
will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as amended,
remain in effect (with a copy of the Rules and any amendments). If applicable, this
Agreement shall be consistent with any Extended Use Agreemen t entered into between
Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. All of the Affordable Units shall be and remain owned by the
Owner for the term of this Agreement. No Affordable Unit may be sold separately.
2.7 Affordable Units Generally.
2.7.1 Accessible Compliant Units. The Project shall comply with the
current California Building Code with respect to the number of Affordable Units that must
be compliant with laws regarding disabled persons (including, without limitation, the
Americans with Disabilities Act) and shall be reserved for and occupied by persons
eligible for such accommodations. Owner shall maintain a waiting list for the affordable
accessible-compliant units, shall promptly deliver a copy thereof to City and shall
thereafter deliver a copy of the revised list to City whenever the list changes. Should
there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner shall add such p rospective
tenant to the waiting list for the affordable accessible -compliant units. At the earliest
possible time an Extremely Low or Very Low or Low Income non -accessible compliant
affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy the
accessible compliant unit. Owner shall include a provision in the non-accessible
compliant affordable lease for any accessible -compliant affordable unit that the non-
accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at
Owner’s cost, as soon as a non-accessible compliant unit becomes available. While any
of the affordable accessible-compliant units are not being leased to disabled persons (due
to unavailability of such persons to lease), the applicable Affordable Unit shall be leased
in accordance with this Agreement.
At all times, Owner shall keep City informed in writing of the income level applicable
to each accessible compliant unit.
The accessible compliant units shall be consistent with accessibility design criteria
established by the State of California, and Owner shall promptly make any changes to
such units required by new laws or changes in laws. Reasonable accommodation shall
be made, as may be requested by specific Extremely Low or Very Low or Low Income
disabled tenants in such units, to provide features such as smoke ala rms with flashing
lights, for instance, if requested by hearing impaired Extremely Low or Very Low or Low
Income tenants in an accessible compliant unit.
Ordinance No. ___
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2.7.2 [Intentionally Deleted].
2.7.3 Preference Policies. To the extent permitted by applicable state and
federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next eligible
households to fill the vacancies allowing for priority for City of Moorpark residents to the
extent permitted by applicable state and federal law. Details of this process shall be
submitted in writing to the City for review and approval prior to the issuance of the first
building permit for this project. Additionally, Owner shall submit to City an annual report,
no later than January 30 of each calendar year for the pervious calendar year, describing
the vacancies filled from households on the list, total vacancies filled and the number of
households on the list.
2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will
advise City on a quarterly basis in writing of the number of Affordable Units in the entire
Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a
certificate in the form specified by the City, which is attached hereto as Exhibit No. 3,
which shall include a statement as to whether or not the tenant was a City of Moorpark
resident who on the waiting list and was given priority. Any reporting schedule less
frequent than quarterly must be expressly approved in writing by the City Manager.
2.7.5 Unit Classification. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely
Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy
by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an
Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other
than for a temporary period (not to exceed 60 days), at which time the classification of the
Unit shall be redetermined (provided that upon such reclassification, Owner must remain
in compliance with this Agreement). Owner shall use commercially reasonable efforts to
prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain
and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3
attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner
shall make a good faith effort to verify that the income declared by an applicant in an
income certification is accurate by reviewing any one or more of the following documents,
which shall be provided by the applicant:
(a) A pay stub for the most recent pay period;
(b) An income tax return for the most recent tax year;
(c) An income verification form from the applicant’s current employer;
(d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
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(e) If the applicant is unemployed and has no tax return, another form of
independent verification is needed.
In addition to the above-referenced income certification and subject to fair housing
laws and the rules and regulations of the California Tax Credit Allocation Committ ee,
eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant
units shall submit a letter from a physician or other document acceptable to the City and
Owner which confirms the accessibility needs of the applicant.
2.7.6 Lease Provisions. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, the Owner shall include provisions in all
signed leases or rental agreements for all Affordable Units which authorize the Owner to
immediately terminate the tenancy of any tenant occupying an Affordable Unit where one
or more of such tenants have misrepresented any fact material to the qualification of such
an individual or household as an Extremely Low or Very Low or Low Income Tenant
and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably
enforce such termination rights (i.e., Owner shall exercise them and not waive them).
Each lease or rental agreement for an Affordable Unit shall also provide that the tenants
of such Affordable Unit shall be subject to annual certification or recertification of income,
as required by the City, and shall be subject to rental increases in accordance with Section
2.11 of this Agreement.
2.7.7 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.7.8 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner in writing
of the name and phone number of such staff person and any replacements. On or before
the first day of June of each year during the Term of this Agreement, commencing after
the first residential occupancy of the Project, Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the
larger of (a) or (b) below:
(a) The percentage increase in the Consumer Price Index during
the prior year, which shall be determined by using the Consumer Price Index by the U. S.
Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for
the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long
Beach-Anaheim index). The calculation shall be made by copying such CPI for the month
of October to the CPI for the previous October.
(b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City’s Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4).
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In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to achieve
substantially the same result.
2.7.9 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld, conditioned, or d elayed.
If the lease or rental agreement provisions specified in this Section are not approved or
disapproved within thirty (30) days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of marketing,
Owner shall prepare and submit to the City for reasonable approval a marketing and
outreach program which shall contain, among other things, the following: how a potential
tenant would apply to rent a Unit in the Project, including where to apply, applicable
income limits and rent levels; support documentation needed such as pay stubs, tax
returns, or confirmation of disability, if applicable, a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in newspapers of general
circulation, including at least one Spanish-language newspaper and mailing notices of
vacancies to or contacting by telephone potential tenants on the waiting list maintained
by Owner. Notices shall also be given to organizations in Ventura County which provide
referrals or other services to persons with disabilities.
2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy
(including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2
every five (5) years) per day until the Affordable Unit is placed back in service except that
such fee shall not be payable for so long as Owner is diligently attempting to repair or re-
build the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Extremely Low Income households shall be
no greater than thirty percent (30%) of thirty percent (30%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance, all in
accordance with California Health and Safety Code Section 50053(b). “Family size
appropriate to the Unit”, as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Al lowance, all in
accordance with California Health and Safety Code Section 50053(b). “Family size
appropriate to the Unit”, as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom u nit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Low Income households shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowancem all in accordance with
California Health and Safety Code Section 50053(b). “Family size appropriate to the Unit”,
as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California Health and
Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4
persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
“Allowances for Tenant Furnished Utilities and Other Services” (form HUD-52667) based
on Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas – Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or future
prudent refinancing of this project, utilizes definitions, sources of information, etc., other
than those which have been herein defined and utilized in calculating Affordable Rent,
then the procedure or input which produces the lowest affordable rent, will prevail as to
the applicable Affordable Unit restricted by this Agreement.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant’s initial
rental date. This recertification shall be submitted in writing to the City within thirty (30)
days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by an Extremely Low
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or Very Low or Low Income Tenant, as the case may be, shall not exceed the allowable
rent calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Extremely Low Income Units and Very Low Income Units, the following
shall apply:
2.12.1 If, upon income recertification, the Owner determines that the
household income of an Extremely Low Income Tenant has increased above the
maximum allowable household income level of an Extremely Low Income Tenant, but
remains equal to or below that of a Very Low Income household, then, except as provided
below in this Section 2.12, the Owner shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one -twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of the County Median Income for the size household
appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to
the occupants thereof. In that event, the next available unit that was previously a Very
Low Income Unit must be rented to (or held vacant and available for immediate occupancy
by) an Extremely Low Income household.
2.12.2 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income level of a Very Low Income Tenant, but remains equal to or
below that of a Low Income household, then, except as provided below in this Section
2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to
such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of sixty
percent (60%) of the County Median Income for the size household appropriate to the
unit (less the utility allowance), upon sixty (60) days written notice to the oc cupants
thereof. In that event, the next available unit that was previously a Low Income Unit must
be rented to (or held vacant and available for immediate occupancy by) a Very Low
Income household.
Notwithstanding the foregoing, any such Tenant shall have the right to
request a recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction of
income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period, Owner shall comply with laws and regulations of CTCAC,
CDLAC and any separate/additional recorded restrictions or “Regulatory Agreement”
required by the Affordable Housing Financing and such requirements with respect to over-
income tenants shall prevail.
Owner shall promptly deliver to City copies of all Affordable Housing Financing
regulatory agreements or similar agreements restricting Units in the Project, and shall
notify City and all affected tenants in writing of the expiration of the period at least one (1)
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calendar year (but not more than fourteen (14) months) prior to expiration of the
Compliance Period and Extended Use Period or Qualified Project Period, whichever
expires later, of any effect on the affordability level of their Affordable Units.
Additionally, Owner shall notify City in writing of any re-syndication or extension of
tax credit financing and any defeasance or refinancing of bond financing as soon as they
become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner hereby agrees that specific enforcement of Owner’s
agreements to comply with the allowable rent and occupancy restrictions of this
Agreement is one of the reasons for the City’s issuing the Project Approvals and entering
into the Amendment to Development Agreement.
2.13.2 Owner further agrees that, in the event of any breach of such
requirements, potential monetary damages to City, as well as prospective Extremely Low
and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and
quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the City
may be entitled as a consequence of the breach hereof, Owner agrees to the imposition
of the remedy of specific performance against it in the case of any event of default by
Owner in complying with the allowable rent, occupancy restrictions or any other provision
of this Agreement. Nothing herein shall impair City’s rights to liquidated damages under
Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner shall prepare and submit to the City, on a
quarterly basis, written reports, setting forth the rental activity for the previous month, and
the current total number of Affordable Units occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit
to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a
Certificate of Continuing Program Compliance in a form substantially similar to Exhibit
No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the
Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or
held vacant and available for occupancy by such Tenants during said period; and (b) that
to the knowledge of Owner, no default has occurred under the provisions of this
Agreement; and (c) such other information as may be requested in writing by the City
Manager.
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2.15.3 Owner shall prepare and submit to the City, on an annual basis, a
report in form and substance reasonably satisfactory to the City, not later than March 31st
of each year for the preceding calendar year, summarizing the vacancy rate of the
Affordable Units in the Project on a month-to-month basis for such calendar year.
2.15.4 Owner shall also deliver to City from time to time any other
information about the Affordable Units and the rental thereof as may be reasonably
requested in writing by City within ten (10) days after any such written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or a single
third-party management agent with demonstrated ability to operate, and experience in
operating, residential housing including restricted affordable housing, in a manner that
will provide decent, safe and sanitary residential facilities to occupants thereof, including
experience in complying with reporting requirements and occupancy restrictions similar
to those imposed upon the Project by the terms of this Agreement. (There may only be
one manager for the entire Project at any one time.)
3.2.2 The Owner, directly or through an affiliate, may be the “manager” of
the Project. The Owner may retain on-site personnel and other consultants and service
providers to assist Owner to operate the Project effectively and in compliance with the
provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner seeks to appoint a replacement management
entity to manage the Project, they shall advise the City of the identity of any such qualified
management agent not later than thirty (30) days prior to the effective date of such
appointment. The Owner shall also submit such additional information about the
background, experience and financial condition of any proposed management agent as
is reasonably requested by the City.
3.2.4 Upon the City’s written request, the Owner shall cooperate with the
City in an annual review of the management practices and status of Project. The purpose
of each annual review will be to enable the City to determine if the Project is being
operated and managed in accordance with the requirements and standards of this
Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to the
management agent.
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3.3.2 There will be regular meetings as necessary between the Owner and
the management agent for the purpose of reviewing policies, procedures, resident
relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number and
email address of the management agent (so that City may contact the management agent
directly), and shall cause the management agent or its personnel to be available on a
twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing
of management personnel to manage the Project in a prudent and businesslike manner.
In addition, Owner shall provide such security services as may be necessar y or
appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal
opportunity guidelines, without regard to race, religion, color, national origin or sex. All
hiring materials will indicate that the Project is an “Equal Opportunity Employer.”
Employment grievances, terminations and promotions will be conducted according to
personnel policies and procedures which conform with equal opportunity laws. All
personnel employed at the Project will receive training specific to Own er’s policies and
procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designat ion and zoning of
the Property, and Owner 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 General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner shall pay to City a single community services fee of Eight
Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual
payments under the City Note (as defined in the Development Agreement)..
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the
Project and the Property in good condition and repair and in a prudent and businesslike
manner. If any portion of the Project is damaged, restoration of the damaged
improvements shall be made by Owner to a condition as good as existed prior to the
damage. Owner shall complete promptly and in a good and workmanlike manner any
improvements which may now or hereafter be constructed as pa rt of the Project and pay
when due all claims for labor performed and material furnished therefor. Owner shall
comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions,
and orders of any governmental authority now or herea fter affecting the conduct or
operation of the Project and of their businesses on the Project or any part thereof or
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requiring any alteration or improvement to be made thereon. Owner shall maintain
grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any
adjacent areas owned by either of them) in good and neat order and repair. Owner hereby
agrees that City may conduct from time to time through representatives of its own choice
who are properly identified as agents of the City, upon reasonable written notice and
subject to reasonable security and safety procedures and rights of tenants in possession,
on-site inspections and observation of such records of Owner relating to the Project and
the Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner’s compliance with the provisions of this Agreement. The Owner shall conduct an
ongoing maintenance program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers’ recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment as
well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of gr affiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and cleaned
regularly and kept free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable City ordinances. The
trash areas will be swept regularly and scrubbed with disinfectant when necessary.
Extermination services will be contracted with to provide pest con trol consistent with high
quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical inspection,
or as occupancy changes, or as the Owner or the management agent may otherwise
deem necessary.
g. Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the work
has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
Ordinance No. ___
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ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect for
the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an “Event of
Default” by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with and observe the
conditions of Project approval, conditions, terms, or covenants of the Development
Agreement or this Agreement, if such failure remains uncured thirty (30) days after writte n
notice of such failure from the City in the manner provided herein or, with respect to a
default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within ninety
(90) days after the first notice of default is given or such longer period as may be agreed
upon by both parties in writing. If a different period or notice requirement is specified
under any other section of this Agreement, then the specific provision shall control.
6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen
(15) business days after written notice of such default by City.
6.1.3 Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate, or report submitted to the City by Owner
proves to have been incorrect in any material respect when made, if such failure remains
uncured thirty (30) days after written notice of such failure from City to Owner in the
manner provided herein or, with respect to a default that cannot be cured within thirty (30)
days, if the Owner fails to commence such cure within such thirty (30) day period or
thereafter fail to diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner 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 which is not dismissed within sixty
(60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the
benefit of creditors of the Owner in bankruptcy or insolvency or for any of i ts properties
which (or who) is not discharged within sixty (60) days after its appointment; or (d)
directing the winding up or liquidation of the Owner, 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.
6.1.5 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
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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 Owner is diligently working to obtain a
return or release of the property and the City's interest hereunder is not imminently
threatened in the City's reasonable business judgment, then the City shall not declare a
default under this subsection.
6.1.6 The Owner shall have voluntarily suspended its business for a period
of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed
the obligations of Owner in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or encumbrance
on the Property (other than the Development Agreement) and all liens and encumbrances
shall be subordinate and subject to this Agreement, regardless of actual date of
recordation. The City shall consider in good faith, reasonable modifications of this
Agreement typically required by secured lenders and commonly known as “mortgagee
protection” provisions; however, in no event shall any such modification shorten the term
of this Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests in the
Project or the 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, which shall, in any event, be junior and subordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty -five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner 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 Owner 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 Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
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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 an y 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. Owner shall, immediately upon written demand thereof 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, encu mbrance 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.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, 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 the prevailing party in connection with the enforcement of this Agreement, whether or
not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner, City shall be entitled to enforce performance of any obligation
of Owner arising under this Agreement and to exercise all rights and powers under this
Agreement or any law now or hereafter in force. Additionally, without limiting any of City’s
other rights or remedies, upon any leasing of a particular Affordable Unit in violation of
this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase
by $2 every five (5) years) per day until the violation has been cured (it being understood
that if the Affordable Unit is unavailable due to material damage or destruction, Section
2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in
addition to enforcement costs and any other damages to which City may be entitled, all
rent charged by Owner in excess of the rental amounts permitted under this Agreement,
with interest thereon from the date paid to Owner until the date paid by Owner to City at
the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner
stipulates, acknowledges and agrees that the amounts described herein are reasonable
estimates of the minimum damages incurred by the City and public as a result of
violation(s), and that actual damage would be impractical or impossible to determine with
accuracy. 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 the City may pursue
inconsistent remedies. The City shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the Owner 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.
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ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner:
[____________]
5251 Ericson Way
Arcata, CA 95521
Attn: Chris Dart (cdart@danco-group.com)
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the m essenger service (if sent by overnight
messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, princ ipal and agent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on -site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to City in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
(other than pertaining to this Agreement), shall be rendered against Owner, or their assets
(other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein “force majeure” shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any of their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cu mulative, and the exercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the oth er party. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and such wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. 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 Owner under this Agreement. No delay or
omission to exercise any right or power accruing up on any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successo rs in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor -in-interest of
such party who has acquired any portion of or interest in th e Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easeme nts, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property “run with the land”.
7.14 Transfers. Owner shall provide the City with at least thirty (30) days’ prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Court for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its addre ss for notices
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pursuant to this Agreement. Nothing contained herein shall affect the right of the City to
serve process in any other manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
(a) “Hazardous Materials” shall mean:
(1) any “hazardous substance” as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the
California Health and Safety Code at such time;
(2) any “hazardous water,” “infectious waste” or “hazardous
material” as defined in Section 25117, 25117.5 or 25501(j) of the California
Health and Safety Code at such time;
(3) any other waste, substance or material designated or
regulated in any way as “toxic” or “hazardous” in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
(4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
(b) “Hazardous Materials Laws” means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements . The
Owner hereby agrees that:
(a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term “Hazardous Materials” shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
(b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
(c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as “Hazardous
Materials Claims”); (3) the presence of any Hazardous Materials in, on or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as “borderzone
property” under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the Cit y) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, r emedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a “Loss”), arising directly or indirectly, in whole or in part, out of (1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occupying or
present on the Project or the Property, in connection with the handling, treatment,
`removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Property. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Materials Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7.19.4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Property
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor’s liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
(a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then -current limit.
(b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
(c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
(d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it conti nues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not less than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amo unts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). “Full Insurable Value of the Project” shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any app raiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a “replacement cost” basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one -half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best’s Insurance Guide, or any successor thereto
(or if there be none, an organization having a national reputation) as having a “Best’s
Rating” of “A” and a “Financial Size Category” of at least “VII” or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies s hall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance .
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to con test or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of “Term” in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the “Developer”
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due to a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 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 the Development Agreement.
8.2.3 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").
8.2.4 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 the Development Agreement.
8.3 Densities Allowed for Development. Owner 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 Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and include all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second “back-up” district) or one
Assessment District containing two zones (one zone to be fully fu nded and the other to
be a back up zone), as determined by the City at the City’s discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPD 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any su ch fees under
protest pursuant to California Government Code Section 66020 and statutes amendatory
or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parkin g spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner 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 the Development Ag reement (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 General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City..
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 for storm water/retention purposes for the Project, and City shall execute and deliver
a revocable license agreement to Owner to that effect.
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WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
By:
Print Name:
Title:
OWNER:
[___________]
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State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
Ordinance No. ___
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State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
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EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005 -04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County
Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel lA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel
1A.
Ordinance No. ___
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EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Low Income 51% and Above
Type of
Unit
Number of
Units
Household Size
Adjustment
Utility
Allowance
1-br 56 2 persons TBD
2-br 46 3 persons TBD
3-br 36 4 persons TBD
Total 138
Very Low Income 31%-50%
Type of
Unit
Number of
Units
Household Size
Adjustment
1-br 16 2 persons TBD
2-br 12 3 persons TBD
3-br 12 4 persons TBD
Total 40
Extremely Low Income 30% and Below
Type of
Unit
Number of
Units
Household Size
Adjustment
1-br 8 2 persons TBD
2-br 6 3 persons TBD
3-br 6 4 persons TBD
Total 20
Total
Units 198
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
The units restricted by this Affordable Housing Agreement, and subject to
the California Health and Safety Code (and related California Code of Regulations)
definitions, rent limits/calculations, and income levels are as follows:
Ordinance No. ___
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All Extremely Low Income Units (i.e. 20 units); all Very Low Income Units (i.e,
40 units) and thirty-eight (38) of the Low Income Units (consisting of 18 one-
bedroom units; 10 two-bedroom units; and 10 three bedroom units), for a total of
98 units.
Ordinance No. ___
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EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification __________ / Recertification __________ Unit Number ________
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied
for in the above apartment project. Listed below are the names of all persons who intend
to reside in the unit:
1.
Name of Members
Of the
Household
2.
Relationship
to Head of
Household
3.
Age
4.
Social Security
Number
5.
Place of
Employment
Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12 -month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
for a unit is $___________________.1
If this form is being completed in accordance with recertification of an Extremely Low Income Tenant’s or Very Low
Income Tenant's or a Low Income Tenant’s occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a
Low Income Unit, respectively, this form must be completed based upon the current income of the occupants.
Ordinance No. ___
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Included in the total anticipated income listed above are:
(a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal services;
(b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from
the operation of a business or profession will be included in income, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation by the family
;
(c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of ca pital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only as
authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an
investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net family
assets in excess of $5,000, annual income shall include the greater of the actual income
derived from all net family assets or a percentage of the value of such assets based on
the current passbook savings rate.
(d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and othe r
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that are
received in a lump sum amount or in prospective monthly amounts;
(e) payments in lieu of earnings, such as unemployment and disability compensation,
workers' compensation and severance pay;
(f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the welfare
assistance agency in accordance with the actual cost of shelter and utilities, the amount
of welfare assistance income to be included as income shall consist of:
(1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
(2) the maximum amount that the welfare assistance agency could in fact allow
the family for shelter and utilities. If the family’s welfare assistance is ratably reduced
form the standard of need by applying a percentage, the amount calculated under this
paragraph shall be the amount resulting from one application of the percentage;
Ordinance No. ___
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(g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from persons
not residing in the dwelling;
(h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the special
pay to a family member serving in the Armed Forces who is exposed to hostile fire; and
Excluded from such anticipated income are:
(a) income from employment of children (including foster children) under the age of
18 years;
(b) payments received for the care of foster children or foster adults (usually persons with
disabilities, unrelated to the tenant family, who are unable to live alone);
(c) lump sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insuranc e and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker’s compensation
and severance pay;
(d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
(e) income of a live-in aide, as defined by 24 CFR §5.403;
(f) the full amount of student financial assistance paid directly to the student or to the
educational institution;
(g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
(h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
(2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits because
they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
(3) amounts received by a participant in other publicly assisted programs which
are specifically for or in reimbursement of out-of-pocket expenses incurred (special
equipment, clothing, transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(4) amounts received under a resident service stipend is a modest amount (not
to exceed $200 per month) received by a resident for performing a service for the Public
Housing Issuer or owner, on a part-time basis, that enhances the quality of life in the
Ordinance No. ___
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development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family member as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
(i) temporary , nonrecurring or sporadic income (including gifts);
(j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full-term student 18 years old or older
(excluding the head of household and spouse);
(l) adoption assistance payments in excess of $480 per adopted child; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
(p) amounts specifically excluded by any other Federal sta tute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
__________Yes __________No; or
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Ordinance No. ___
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__________Yes __________No
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
__________Yes __________No
(d) If the answer to (c) above is yes, state:
(1) the combined total value of all such assets: $____________________
(2) the amount of income expected to be derived from such assets in the 12 -
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $_______________, and
(3) the amount of such income, if any, that was included in item 6 above:
$_______________
8. Are all of the individuals who propose to reside in the unit full-time students*?
__________Yes __________No
*A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
(a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants o f the unit a
husband and wife entitled to file a joint federal income tax return?
__________Yes __________No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the "Owner"), has
any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corpo ration, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner
to determine maximum income for eligibility to occupy the unit; and I/we declare that all
information set forth herein is true, correct and complete and based upon inform ation I/we
deem reliable and that the statement of total anticipated income contained in paragraph
6 is reasonable and based upon such investigation as the undersigned deemed
necessary.
Ordinance No. ___
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11. I/We will assist the Owner in obtaining any information or documents required to
verify the statements made herein, including either an income verification from my/our
present employer(s) or copies of federal tax returns for the immediately preceding
calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent
or terminate my/our occupancy of the unit by instituti on of an action for ejection or other
appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this ________day of_____________________, 20________ (year) in the City
of Moorpark, California
________________________________________________________
_____________________________________________________
Applicant Applicant
_______________________________________________________
_____________________________________________________
Applicant Applicant
[Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
Ordinance No. ___
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FOR COMPLETION BY OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $____________
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($ ___________ );
(2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount in
7(d)(1) would be if invested in passbook savings ($ _______________), subtract from
that figure the amount entered in 7(d)(3) and enter the remaining b alance ($
_______________);
(3) Enter at right the greater of the amount calculated under (1) or (2)
above:$__________________________
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $___________________
2. The amount entered in 1.c:
________________ Qualifies the applicant(s) as a Very-Low Income Tenant(s).
_______________ Qualifies the applicant(s) as an Extremely Low Income Tenant(s).
3. Number of apartment unit assigned: _________ Bedroom size: ___________
Rent:$______________
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
________________ Employer income verification.
________________ Copies of tax returns.
________________ Other( ______________________________________ )
6. Is occupant a City of Moorpark resident on the waiting list who was given priority?
Yes: No:
___________________________________ ___________________
Manager Date
Ordinance No. ___
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INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Applicant
Gross
Wages
& Salaries*
(YTD as of:
________)
Net
Income
from 1040
(self
employed)
1099
Income
Public
Assistance
Social
Security
Pension Unemploy
ment
disability or
workers
compensat
ion pay
Military
Pay
Alimony
and/or
Child
Support
Family
Supp.
(regular gift
from
person not
living in
unit)
1
2
3
4
(A) TOTAL INCOME $
*Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or insurance
payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written verification
is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property* $_____________________________ Savings $_______________________________
Stocks $_____________________________ Bonds $_______________________________
Other** $_____________________________
(B) TOTAL ASSET INCOME $
*Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount of
any loans secured by the property.
**Does not include the personal property i.e., furniture or automobiles.
TOTAL HOUSEHOLD INCOME (A + B) $
Ordinance No. ___
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INCOME VERIFICATION
(FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee’s current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages (Gross)
_________________
Overtime _________________
Bonuses _________________
Commissions _____________
Current Base Pay _____________
Other Income __________________
Avg. Total Hours
Worked Weekly __________________
Total Current Income_________________
Year-to-Date Income_________________
Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other ____________
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase $__________ per ________ start
date: ________
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
___________________________________________________________________
Date Employer
___________________________________________________________________
Signature Title
___________________________________________________________________
Employer’s Address Employer’s Phone Number
APPLICANT
Ordinance No. ___
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I hereby grant you permission to disclose my income to
________________________________ in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
______________________________________
Date
______________________________________________________________________
Print Name (Resident) Signature (Resident)
Please send to: ________________________________
(Management Co.
or Owner) ________________________________
________________________________
Ordinance No. ___
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INCOME VERIFICATION
(for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
______________________________________________________________
Signature Date
Ordinance No. ___
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INCOME VERIFICATION
(for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
_____________________________ Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to _________________________________________ the
specific information requested below:
Date:_________________________________________________________________
Signature:_____________________________________________________________
Social Security No.: ______________________
Name (Print): ______________________________
Address(Print)__________________________________________________________
Monthly Benefits Began/Will Begin:
__________________________________________________
Social Security Benefit Amount:
$____________________________________________________
Other Benefit(s):______________________ Amount: $________________________
Medicare Deductions: $_________________________
Are benefits expected to change? [ ] Yes [ ] No
If yes, please state date and amount:
Date: _______________________of change
Amount $____________________
Ordinance No. ___
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If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
_________________________________________________________________
Date of Resumption: ____________
Amount:___________________________________
Date: ___________________________
Signature: ___________________________
Title: ___________________________
Please send form to:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
Ordinance No. ___
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INCOME VERIFICATION
(for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the ________________________________ Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
______________________________ the specific information requested below:
Date:_______________________________________________________________
Signature:_____________________________________________________________
Caseload Number:_______________________
Name (Print):_________________________
Case Number: _______________________
Case Worker:_________________________
1. Number of persons included in budget: _________________________
2. Total monthly budget $______________________________________
(a) Amount of grant $__________________
(b) Date aid last began:____________________
(c)Other income and source:________________________________________
(d) Is other income included in total budget? Yes No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):___________
4. If recipient is not receiving full grant, please indicate reason:
[ ] Overpayment due to client’s failure to report other income
[ ] Computation error
[ ]
Other:__________________________________________________________
Ordinance No. ___
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Date when full grant will resume:____________________________________________
Date:_______________________________
Case Worker’s Signature:_____________________
Telephone:__________________________
District Office:______________________________
Your very early response will be appreciated.
Please return form to:
________________________________________________________
________________________________________________________
________________________________________________________
Ordinance No. ___
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DECLARATION OF NO INCOME
As managing agents for _______________________________________________
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
________________________________
Name of Management Company
By:
________________________________
Name and Title
CERTIFICATION
I, ____________________________, do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment
Unemployment
Compensation
Social Security
Workers Compensation
Child Support
Education Grants/Work
Study
Self Employment
AFDC
SSI
Retirement Funds
Alimony
Income from Assets
Pensions
General Assistance
Disability
Union Benefits
Family Support
Annuities
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
________________________________ _______________________________
Signature Date
________________________________ _______________________________
Witness Signature Date
Ordinance No. ___
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Support Verification
Source’s Mailing Address: ___________________
Phone #:______________________
Fax #:_________________________
___________________
___________________
Recipient: ___________________
______________________________________________________________________
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information requested
below regarding the above referenced individuals. This information will be used only for
determination of eligibility and/or rent computation. You will notice a release of
information is authorized by the applicant/tenant’s signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
_____________________________________________________________
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:_______________________________________
Social Security #:_______________
Ordinance No. ___
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Please complete the following. If the monies are based on a percentage of the payor’s
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
[ ] Child Support ____________________
_
( ) weekly ( ) monthly ( )
yearly
[ ] Family Support ____________________
_
( ) weekly ( ) monthly ( )
yearly
[ ] Alimony ____________________
_
( ) weekly ( ) monthly ( )
yearly
[ ] Other______________
(Please list
type)
____________________
_
( ) weekly ( ) monthly ( )
yearly
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:____________________________________________________________
______________________________________________________________________
______________________________________________________________________
Signature of Source:________________________________
SSN#:____________________
Date Completed Form:______________________________
Ordinance No. ___
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EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING _______
The undersigned, ___________________________, as the authorized
representative of (the “Owner”), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites (“Developer”) and the City of the City of Moorpark (the
“City”), dated as of ____________________, 20__.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date an Extremely Low
Income Tenant or Very Low Income Tenant vacated such Unit, as indicated:
Occupied by Extremely Low Income Tenants:
Number of Units: ________________________
Occupied by Very Low Income Tenants:
Number of Units:
Occupied by Low Income Tenants:
Number of Units:
Held vacant for occupancy continuously since last occupied by Extremely Low Income
Tenants and Very Low Income Tenants and Low Income Tenants.
Vacant Units
Number:_____________________
Occupied Units
Number:_______________________
Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants
who commenced occupancy of Units during the preceding [month/quarter]:
Extremely Low Income:
Units Nos.:______________________________________________________
Ordinance No. ___
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Very Low Income:
Units Nos.:______________________________________________________
Low Income:
Units Nos.:______________________________________________________
Attached is a separate sheet (the “Bond Program Report”) listing, among other
items, the following information for each apartment Unit in the Project: the number of each
apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and
number of bedrooms of each Unit. It also indicates which Units are occupied by Extremely
Low Income Tenants, Low Income Tenants and Very Low Income Tenants and which
Units became Extremely Low Income Units, Low Income Units and Very Low Income
Units during the preceding [month/quarter]. The information contained thereon is true
and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
during such [month/quarter] and of Owner’s performance under the Affordable Housing
Agreement among Owner and the City, has been made under the supervision of the
undersigned; and (2) to the best of the knowledge of the undersigned, based on the
review described in clause (1) hereof, the Owner is not in default under any of the terms
and provisions of the above documents [or describe the nature of any default in detail and
set forth the measures being taken to remedy such default:
.]
Ordinance No. ___
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12853-0018\2555330v6.doc
EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(To Be Attached)
Ordinance No. ___
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12853-0018\2555330v6.doc
EXHIBIT E
FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST
Ordinance No. ___
Page 81
79
DRAFT
PROMISSORY NOTE
(City Loan)
$3,890,500 ___________, 2022
FOR VALUE RECEIVED, [_____________], a California limited partnership (the
“Borrower”), hereby promises to pay to the order of the City of Moorpark, a California municipal
corporation (the “Lender” or (“City”), whose address is 799 Moorpark Avenue, Moorpark,
California 93021, the principal amount of Three Million Eight Hundred Ninety-Thousand Five
Hundred Dollars and 00/100 ($3,890,500).
1. The Loan. This Promissory Note (the “Note”) evidences the obligation of the
Borrower to the Lender for the repayment of funds loaned to the Borrower for the payment of
certain City development fees (the “Loan”) in the connection with the development of a 200-unit
low-income apartment complex to be located in the City of Moorpark (the “Project”).
2. Interest. Simple interest shall accrue on the outstanding principal balance of this
Promissory Note (“Note”) from the date of this Note at a rate equal to 3% per annum until the
Maturity Date (as defined below). Interest shall be calculated based on a 365 day year, upon actual
days elapsed.
3. Maturity Date. The principal amount of this Note along with all accrued and unpaid
interest and/or other amounts due shall be due and payable on the fifty-fifth (55) anniversary of
the date of issuance of certificates of occupancy for the Project (the “Maturity Date”); provided,
however, that the Maturity Date may be accelerated in accordance with the terms and provisions
of this Note.
4. Payments. Beginning in the year following the year in which the Project receives
its certificate of occupancy, annual payments of interest and principal hereunder for each year shall
be made on or before June 1 of the following year only to the extent of 50% [may be reduced and
shared pro rata with other soft lenders] of available Residual Recepits (as defined below). On or
prior to the date that the Borrower pays its annual payment, Borrower shall submit the following
to the City: (1) A statement of Residual Receipts for the relevant period, for the Project and the
status of all reserve funds, including without limitation; (2) A statement from the independent
public accountant that audited the Borrower's financial records for the relevant period, which
statement must confirm that Borrower's calculation of the City’s share of Residual Receipts is
accurate based on Gross Revenue (as defined below) and Annual Operating Expenses (as defined
below); and (3) Any additional documentation reasonably required by the City to substantiate
Borrower's calculation of City’s share of Residual Receipts. All payments received by Lender shall
be applied first to accrued interest then to the unpaid principal balance.
For the purposes of this Note, the term "Residual Receipts" in a particular calendar year
shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses.
"Gross Revenue" means for each calendar year, all revenue, income, receip ts, and other
consideration actually received by the borrower from operation and leasing of the Project. Gross
Ordinance No. ___
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Moorpark City Note (2)
Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants, payments
or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all
cancellation fees, price index adjustments and any other rental adjustments to leases or rental
agreements resulting in actual income to Borrower; (2) The proceeds of business interruption or
similar insurance; (3) Any payment received in consideration for the leasing or other use of any
portion of the project; (4) Subject to the rights of senior lenders, the proceeds of casualty insurance
to the extent not utilized to repair or rebuild the project (or applied toward the cost of recovering
such proceeds); (5) Subject to the rights of senior lenders, condemnation awards for a taking of
part or all of the project for a temporary period; and (6) Gross Revenue shall exclude tenants'
security deposits, loan proceeds, capital contributions or other similar advances.
"Annual Operating Expenses" with respect to a particular calendar year means the
following costs reasonably and actually incurred for operation and maintenance of the project to
the extent that they are consistent with an annual independent audit performed by a certified public
accountant using generally accepted accounting principles: (1) Property taxes and assessments
imposed on the property; (2) Debt service and associated fees currently due on a non-optional basis
(excluding debt service due from residual receipts or surplus cash of the project) on loans
associated with development of the project and approved by the City in the approved financing
plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements
which are standard in the industry, and pursuant to a management contract approved by the City;
(4) Premiums for property damage and liability insurance; (5) Any annual license or certificate of
occupancy fees required for operation of the project; (6) Annual regulatory compliance monitoring
fees payable to the City; (7) Security services; (8) Advertising and marketing costs; (9) Cash
deposited into reserves for capital replacements of the project in an amount to be approved by the
City as part of the approved financing plan; (10) Partnership management fees in the amount
approved by the City as part of the approved financing plan; (11) Utility services not paid for
directly by tenants, including without limitation, water, sewer, and trash collection; (12)
Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and
decorating, cleaning, common systems repair, janitorial supplies and services; (13) Social services
fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in relation
to any approved financing; (15) Extraordinary operating costs specifically approved by the City in
its reasonable discretion; (16) Payments of deductibles in connection with casualty insurance
claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired
or restored, and not normally paid from reserves; (17) Reasonable accounting fees and legal fees;
(18) Payments of Deferred Developer Fee; and (19) Other ordinary and reasonable operating
expenses approved by the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or
other non-cash expenses or, any amount expended from a reserve account.
5. Prepayment. The principal and interest of this Note may be voluntarily prepaid at
any time, in its entirety or in any partial amount, without premium or penalty.
6. Security. Payment of the indebtedness evidenced by this Note is secured by that
certain Subordinated Deed of Trust, Fixture Filing, and Assignment of Rents (City Loan) (the
“Deed of Trust”), of even date herewith, and made by Borrower, as trustor, to Commonwealth
Ordinance No. ___
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3
Moorpark City Note (2)
Land Title Insurance Company, as trustee, for the benefit of Lender, as beneficiary, which
encumbers real property in the County of Ventura, State of California, as more particularly
described in Exhibit A to the Deed of Trust, together with the improvements to be located thereon.
7. Events of Default. The occurrence of any of the following, whatever the reason
therefor, shall constitute an “Event of Default” hereunder:
a. Borrower fails to make any payment of principal or interest hereunder when
due; or
b. Borrower fails to pay any other amount owing to Lender under this Note,
or fails to perform any other obligation under this Note; or
c. Borrower is dissolved, liquidated or terminated, or all or substantially all of
the assets of Borrower are sold or otherwise transferred without Lender's prior written consent; or
d. Borrower is the subject of an order for relief by a bankruptcy court, or is
unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit
of creditors; or Borrower applies for or consents to the appointment of any rehabilitator or similar
officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of Borrower and the
appointment continues undischarged or unstayed for 90 days; or Borrower institutes or consents
to any bankruptcy, insolvency, reorganization, arrangement, readjustment or debt, dissolution,
custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or
any part of its property; or any similar proceeding is instituted without the consent of Borrower,
as the case may be, and continues undismissed or unstayed for 90 days; or any judgment, writ,
warrant or attachment or execution, or similar process is issued or levied against any property of
Borrower and is not released, vacated or fully bonded within 90 days after its issue or levy; or
e. An event of default by Borrower has occurred and is continuimg past
applicable notice and cure periods under that certain Amended and Restated Affordable Housing
Agreement to be entered into between Lender and Borrower and recorded in the Official Records
of Ventura County concurrently herewith.
Lender agrees any cure of any Event of Default or default made by the investor
limited partner of Borrower shall be deemed to be a cure by Borrower and shall be accepted or
rejected on the same basis as if made by Borrower.
8. Acceleration and Other Remedies. If the Lender believes, in it sole judgment, that
an Event of Default has occurred and such Event of Default is not cured within sixty (60) days
after written notice to Borrower and the investor limited partner of Borrower, the Lender, at its
option, within sixty (60) days thereafter, may declare the outstanding principal and interest to be
immediately due and payable. Notwithstanding the foregoing, the cure periods hereunder shall not
apply to the final payment due hereunder on the Maturity Date or to any acceleration of the Loan.
Ordinance No. ___
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4
Moorpark City Note (2)
9. Subordination; No Acceleration Upon Transfer or Refinancing.
a. Lender shall execute commercially reasonable subordination agreements as
requested by the Borrower’s senior lender(s) to subordinate this Note and the Deed of Trust
to the Borrower’s senior bond financing encumbering the Project property.
b. The Borrower shall be permitted to refinance its senior bond financing and
the Lender shall also subordinate this Note and the Deed of Trust to any refinancing of
such senior bond financing so long as the amount to be subordinated does not exceed the
original principal balance of such loan plus reasonable closing costs. In such event,
subordination of the Loan to such refinancing shall be subject to the Lender’s sole
discretion.
10. Non-Recourse. Anything contained in any provision of the Deed of Trust or this
Note notwithstanding, the Loan shall be a nonrecourse obligation of Borrower and its partners
except in the event of fraud or a material misrepresentation of fact by Borrower.
11. Application of Payments. All payments made hereunder shall be applied first to
interest due and then in reduction of the principal balance.
12. Waivers. Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of protest and all other notices and demands of every kind that would otherwise
be available in connection with this Note.
13. Notice. Any notice, consent or approval required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given (i) one business day
after being deposited with Federal Express or another reliable overnight courier service for next
day delivery, (ii) upon electronic mail transmission (except that if the date of such transmission is
not a business day, then such notice shall be deemed to be given on the first business day following
such transmission), or (iii) two business days after being deposited in the United States mail,
registered or certified mail, postage prepaid, return receipt required, and addressed as follows:
If to Borrower: [____________]
c/o Danco Communities
5251 Ericson Way
Arcata, CA 95521
Attention: Chris Dart (cdart@danco-group.com)
With a copy to: Odu & Associates, PC
31805 Temecula Parkway #720
Temecula, CA 92592
Attention: Nkechi C. Odu, Esq.
(nkechi@odulaw.com)
With a copy to : [EQUITY INVESTOR]
Ordinance No. ___
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Moorpark City Note (2)
With a copy to: [EQUITY INVESTOR COUNSEL]
If to Lender: City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: Troy Brown, City Manager
(CityManager@moorparkca.gov)
With a copy to: [_______________]
Addresses for notice may be changed from time to time by written notice to the other party.
15. Miscellaneous. Time is of the essence hereof. All payments hereunder shall be
made in lawful money of the United States of America. This Note shall be governed by the laws
of the State of California.
[SIGNATURE ON FOLLOWING PAGE]
Ordinance No. ___
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Moorpark City Note (2)
IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as
of the date first above written.
“BORROWER”
[___________]
Ordinance No. ___
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DRAFT
Moorpark – Subordinate Deed of Trust (2)
RECORDING REQUESTED BY
Commonwealth Land Title Insurance Company
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
_______________________________________________________________________
(Space Above This Line For Recorder's Use)
SUBORDINATED DEED OF TRUST,
FIXTURE FILING, AND ASSIGNMENT OF RENTS
THIS SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT
OF RENTS (“Subordinated Deed of Trust”) is made on this ____ day of ___________ 2022 by
[_____________], a California limited partnership, as trustor (“Borrower”) to Commonwealth
Land Title Insurance Company (“Trustee”), for the benefit of CITY OF MOORPARK, a
California municipal corporation (“Lender”).
The Borrower, in consideration of the indebtedness recited and the trust created in this
Subordinated Deed of Trust, irrevocably grants and conveys to Trustee, in trust, with power of
sale all of its right title and interest in and to that certain real property located in the City of
Moorpark, County of Ventura, State of California, legally described in “Exhibit A” attached
hereto and made a part hereof.
Together with all of the improvements now or hereafter erected on said property, and all
easements, rights, appurtenances, rents (subject, however, to the rights and authorities given in
this Subordinated Deed of Trust to the Lender to collect and apply such rents), royalties, mineral,
oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or
hereafter attached to said property, all of which including replacements and additions thereto,
shall be deemed to be and remain a part of the property covered by this Subordinated Deed of
Trust; and all of the foregoing, together with said property are referred to in this Subordinated
Deed of Trust as the “Property”;
This Deed of Trust constitutes a financing statement filed as a fixture filing under
Article 9 of the California Uniform Commercial Code, as amended or recodified from time to
time, covering any property which now is or later may become fixtures attached to the Property.
For this purpose, Borrower is debtor and Lender is secured party.
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
To secure for the benefit of Lender the repayment of the indebtedness evidenced by the
Borrower's promissory note dated [__________], 2022 (the “Note”) in the principal sum of
$3,360,000.00 and the performance of the covenants and agreements of the Borrower contained
in this Subordinated Deed of Trust, the Note, and that certain Amended and Restated Affordable
Housing Agreement to be entered into between Lender and Borrower and recorded in the
Official Records of Ventura County concurrently herewith.
Borrower covenants and agrees as follows:
PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall pay when due the
interest and the principal of the indebtedness evidenced by the Note from the sources and
pursuant to the terms of the Note.
COMPLIANCE WITH SENIOR DEED OF TRUST. Borrower covenants and agrees to
comply with the terms and conditions of any senior deeds of trust recorded against the Property
(collectively, the “Senior Encumbrances”).
CHARGES AND LIENS. Borrower shall pay all taxes, assessments and other charges,
fines and impositions attributable to the Property which may attain a priority over this
Subordinated Deed of Trust. Borrower shall promptly pay when due all installments or
payments required by Lender and comply with all obligations of any deed of trust that is prior to
this Subordinated Deed of Trust.
INSURANCE PROCEEDS. Any insurance proceeds received as a result of damage to
the Property from fire or other calamity shall be first expended as required by any Senior
Encumbrances.
PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants
and agreements contained in this Subordinated Deed of Trust, or if any action or proceeding is
commenced which materially affects the Lender's interest in the Property, including, but not
limited to, default on or foreclosure of a prior deed of trust, eminent domain, insolvency, code
enforcement, or arrangement or proceedings involving a bankrupt or decedent, then the Lender at
Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums
and take such action as is necessary to protect the Lender's interest including, but not limited to,
disbursement of reasonable attorney's fees and entry upon the Property to make repairs, but shall
have no right of reimbursement.
INSPECTION. Lender may make or cause to be made reasonable entries upon and
inspections of the Property, provided that the Lender shall give Borrower notice prior to any such
inspection specifying reasonable cause therefor related to the Lender's interest in the Property.
CONDEMNATION. Subject to the rights of the holder of a prior deed of trust, the
proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of
condemnation, are hereby assigned and shall be paid to Lender.
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
In the event of a total taking of the Property, the proceeds shall be treated as if
received from a sale of the Property. The proceeds shall be applied to the sums to be repaid in
the amount and manner described in the Senior Encumbrances and the documents evidencing the
indebtedness secured thereby. Any part of the proceeds remaining after these amounts have been
paid shall be paid to the Borrower. In the event of a partial taking of the Property, unless
Borrower and Lender agree in writing, the proceeds shall be treated as if received from a sale of
that portion of the Property which is taken in the condemnation. The percentage value of the
portion taken, as compared to the full value of the entire Property, shall be determined by
dividing the condemnation proceeds by the fair market value of the entire Property just prior to
the taking. This percentage value, once determined, shall be used in the following manner to
allocate the condemnation proceeds:
a. First, to the payment of any amount owing under the Senior
Encumbrances and the documents evidencing the indebtedness secured thereby;
b. Second, to payment of the Note;
c. Third, to the Borrower.
BORROWER NOT RELEASED. Extension of the time for payment or modification of
amortization of the sums secured by this Subordinated Deed of Trust granted by the Lender to
any successor in interest of Borrower shall not operate to release, in any manner, the liability of
the original Borrower and Borrower's successors in interest. Lender shall not be required to
commence proceedings against such successor or refuse to extend time for payment or
modification of amortization of the sums secured by this Subordinated Deed of Trust by reason
of any demand made by the original Borrower and Borrower's successors in interest.
FORBEARANCE BY LENDER NOT A WAIVER. Any forbearance by the Lender in
exercising any right or remedy hereunder, otherwise afforded by applicable law, shall not be a
waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to
accelerate the maturity of the indebtedness secured by this Subordinated Deed of Trust.
REMEDIES CUMULATIVE. All remedies provided in this Subordinated Deed of Trust
are distinct and cumulative to any other right or remedy under this Subordinated Deed of Trust or
afforded by law or equity, and may be exercised concurrently, independently or successively.
SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
CAPTIONS. The covenants and agreements contained in this Subordinated Deed of Trust shall
bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and
Borrower, subject to the provisions of Section 16 hereof. All covenants and agreements of
Borrower shall be joint and several. The captions and headings of the Sections of this
Subordinated Deed of Trust are for convenience only and are not to be used to interpret or define
the provisions hereof.
NOTICE. Except for any notice required under applicable law to be given in another
manner, any notice to Borrower or Lender provided for in this Subordinated Deed of Trust shall
be given at the addresses provided in the Note.
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
GOVERNING LAW; SEVERABILITY. This Subordinated Deed of Trust shall be
governed by the laws of the State of California. In the event that any provision or clause of this
Subordinated Deed of Trust or the Note as incorporated herein conflicts with applicable law,
such conflict shall not affect other provisions of this Subordinated Deed of Trust or the Note
which can be given effect without the conflicting provision, and to this end the provisions of the
Subordinated Deed of Trust and Note are declared to be severable.
TRANSFER OF THE PROPERTY. If all or any of the Property is sold or transferred by
Borrower, excluding permitted transfers pursuant to this Subordinated Deed of Trust or the Note,
all the sums secured by this Subordinated Deed of Trust shall be immediately due and payable.
In the event of such an acceleration, Lender shall mail Borrower notice of the acceleration in
accordance with Section 12 hereof. Such notice shall provide a period of not less than 60 days
from the date the notice is mailed within which the Borrower may pay the sums declared due. If
the Borrower fails to pay such sums prior to the expiration of such period, Lender may, without
further notice or demand on Borrower, invoke any remedies permitted by Section 16 hereof.
ACCELERATION; REMEDIES Except as provided in Section 15 hereof, upon
Borrower's breach of any covenant or agreement of Borrower in this Subordinated Deed of Trust
or the Note as incorporated by reference in this Subordinated Deed of Trust, including the
covenants to pay, when due, any sums secured by this Subordinated Deed of Trust, Lender, prior
to acceleration, shall mail notice to Borrower as provide in Section 12 hereof specifying: (a) the
breach; (b) the action required to cure such breach; (c) a date by which such breach must be
cured; and (d) that failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Subordinated Deed of Trust and sale of the
Property. If the breach is not cured on or before the date specified in the notice, the Lender, at its
option, may seek remedies in the manner provided in the Note. Lender shall be entitled to
collect all reasonable costs and expenses incurred in pursuing the remedies provided in this
Section 16, including, but not limited to, reasonable attorneys’ fees.
Subject to the terms and conditions provided herein, if Lender invokes the power
of sale, Lender shall have appraised, or shall cause Trustee to have appraised, the Property to
determine its fair market value. The Lender shall also execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause Property
to be sold, and shall cause such notice to be recorded in each county in which the Property or
some part thereof is located. Lender or Trustee shall mail copies of such notice in a manner
prescribed by applicable law. After the lapse of such time as may be required by applicable law,
Trustee, without demand on Borrower, shall sell the Property at public auction to the highest
bidder at the time and place and under the terms designated in the notice of sale in one or more
parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any
parcel of the Property by public announcement at the time and place of any previously scheduled
sale. Lender or Lender's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so
sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed
shall be prime facie evidence of the truth of the statements made therein. Trustee shall apply the
proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale,
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
including, but not limited to, reasonable Trustee and attorneys' fees and costs of title evidence;
(b) to all sums secured by the lien of some other or later security instrument, as evidenced by a
Note, by and between the Borrower and Borrower's lender, that is either prior in lien priority to
the priority of this Subordinated Deed of Trust or to which the Lender has subordinated its lien
rights and, thereby, placed itself in a subordinated position, (c) to all sums secured by this
Subordinated Deed of Trust, as evidenced by the Note; and (d) the excess, if any, to the person or
persons legally entitled thereto.
BORROWER'S RIGHT TO REINSTATE. Notwithstanding Lender's acceleration of the
sums secured by this Subordinated Deed of Trust, Borrower shall have the right to have any
proceedings begun by Lender to enforce covenants of this Subordinated Deed of Trust relating to
sums due and payable by Borrower discontinued at any time prior to five days before the
Property is scheduled for sale pursuant to the power of sale contained in this Subordinated Deed
of Trust or at any time prior to entry of a judgment enforcing this Subordinated Deed of Trust if:
(a) Borrower pays Lender all sums which would be then due under this Subordinated Deed of
Trust, the Note and notes securing Future Advances, if any, had no acceleration occurred; (b)
Borrower pays all reasonable expenses incurred by Lender and Trustee in enforcing the
covenants and agreements of Borrower contained in this Subordinated Deed of Trust and in
enforcing Lender's and Trustee's remedies as provided in Section 16 hereof, including, but not
limited to reasonable attorneys' fees; (c) Borrower takes such actions as Lender may reasonably
require to assure that the lien of this Subordinated Deed of Trust, Lender's interest in the
Property, and Borrower's obligation to pay the sums secured by this Subordinated Deed of Trust
shall continue unimpaired. Upon such payment and cure by Borrower, this Subordinated Deed
of Trust and the obligations secured hereby shall remain in full force and effect as if no
acceleration had occurred.
ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION. As additional security hereunder, subject to the rights of senior lien holders,
Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior
to acceleration under Section 15 hereof, have the right to collect such rents as they become due.
Upon acceleration under Section 15 hereof or abandonment of the Property, Lender, in person,
by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of,
rent and manage the Property and to collect the rents of the Property. All rents collected by the
Lender or by a judicially appointed receiver shall be applied first to payment of the cost of
management of the Property and collection of rents, including, but not limited to, receiver's fees,
premiums on receiver's bonds and reasonable attorneys' fees, and then to the sums secured by
this Subordinated Deed of Trust. Lender and the receiver shall be liable to account for those
rents actually received and expenditures actually incurred.
RECONVEYANCE. Upon payment of all sums evidenced by the Note and secured by
this Subordinated Deed of Trust, Trustee shall reconvey the Property without warranty and
without charge to the person or persons legally entitled thereto. Such person or persons shall pay
all costs of recordation, if any.
SUBSTITUTE TRUSTEE. Lender, at Lender's option, may from time to time remove
Trustee and appoint a successor trustee to act as Trustee under this Subordinated Deed of Trust.
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
Without conveyance of the Property, the successor trustee shall succeed to all the title, power
and duties conferred upon the Trustee in this Subordinated Deed of Trust and by applicable law.
REQUEST FOR NOTICES. Borrower requests that copies of the notice of default and
notice of sale be sent to the Borrower's address.
STATEMENT OF OBLIGATION. The Lender may collect a fee not to exceed $15.00
for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of the
State of California.
SUBORDINATION ACKNOWLEDGMENT. Beneficiary hereby acknowledges that the
loan secured by this Subordinated Deed of Trust is also subordinate to the extended use
agreement required to be executed by Borrower pursuant to Section 42(h)(6)(B) of the Internal
Revenue Code, for purposes of the low-income housing tax credits to be allocated to Borrower.
In addition, Beneficiary hereby acknowledges that the loan secured by this Subordinated Deed of
Trust is further subordinate to Section 42(h)(6)(e)(ii) of the Internal Revenue Code, which
prohibits the eviction or termination of a tenancy, other than for good cause, of an existing tenant
of any low-income housing tax credit unit or any increase in the gross rent with respect to such
unit, not otherwise permitted under Section 42, for a period of three (3) years after the date the
Property is acquired by Lender through foreclosure or instrument in lieu of foreclosure.
FINANCING STATEMENT. This Deed of Trust shall constitute a financing statement
pursuant to California UCC §9-502, and shall be filed as a fixture filing in the Official Records
of the County in which the Property is located and covers goods which are or are to become
fixtures on the Property.
Ordinance No. ___
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Moorpark – Subordinate Deed of Trust (3)
IN WITNESS THEREOF, Borrower has executed this Subordinated Deed of Trust on the
day and year first above written.
BORROWER:
[_____________]
Ordinance No. ___
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A Notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
) SS.
COUNTY OF _________________ )
On , before me, , a
Notary Public in and for said State, personally appeared,
, who proved to me the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity(ies)
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
[SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT
NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-
04 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF
CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764
OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI,
AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS
(MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF
LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS
SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE
RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY
AND STATE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID
MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT
LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF
VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT
NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T",
TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF
MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY
RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM
THE SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05
FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST
LINE OF SAID PARCEL 1A.
EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON
THE SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL
RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT,
IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL
RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE
TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT
HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID
LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED
VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E.
SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL
RECORDS.
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EXHIBIT “F”
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
Attached.
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NEW EXHIBIT “D” TO DA (POWER LINES)
(Attached.)
Replaces Exhibit D and Exhibit G to the DA.
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