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HomeMy WebLinkAboutRES PC 2021 659 2021 0727RESOLUTION NO. PC -2021-659 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING TO THE CITY COUNCIL APPROVAL TO AMEND THE TERMS OF A DEVELOPMENT AGREEMENT RELATED TO A PREVIOUSLY - APPROVED RESIDENTIAL PROJECT LOCATED AT 150 CASEY ROAD, 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, FOR DANCO COMMUNITIES (ON BEHALF OF ESSEX MOORPARK OWNER L.P.) WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public hearing and adopted Resolution No. 2017-3582 approving Residential Planned Development Permit No. 2012-02 for the construction of a 200 -unit apartment complex and associated site improvements on approximately 11.66 acres located at 150 Casey Road, and adopted a Mitigated Negative Declaration from a previous project, Residential Planned Development Permit No. 2004-06; and WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443, approving Development Agreement by and between the City of Moorpark and Essex Moorpark Owner L.P. in association with Residential Planned Development Permit No. 2012-02, and WHEREAS, on April 17, 2017, the Development Agreement was executed by the City of Moorpark and Essex Moorpark Owner L.P; and WHEREAS, on June 7, 2021, an application was filed to amend the terms of the Development Agreement between the City of the Moorpark and Essex Moorpark Owner L.P.; and WHEREAS, at a duly noticed public hearing on June 22, 2021, and July 27, 2021, the Planning Commission considered First Amendment to the Development Agreement, including the agenda report and any supplements thereto and written public comments; opened the public hearing and took and considered public testimony both for and against the proposal; and WHEREAS, the Interim Community Development Department has determined that the request to amendment to the Development Agreement is consistent with the Mitigated Negative Declaration adopted for the original project, including Residential Planned Development No. 2012-02. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: Resolution No. PC -2021- 659 Page 2 SECTION 1. ENVIRONMENTAL DOCUMENTATION: The Planning Commission, based on its own independent analysis and judgment, concurs with the Interim Community Development Director's determination that the request to amend the Development Agreement is consistent with the Mitigative Negative Declaration adopted for Residential Planned Development Permit No. 2012-02. No further environmental documentation is needed. SECTION 2. DEVELOPMENT AGREEMENT FINDINGS: Based upon the information set forth in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission makes the following findings in accordance with the City of Moorpark, Municipal Code Section 15.40.100: 1. The provisions of the First Amendment to the Development Agreement are consistent with the General Plan in that it will help achieve the goals of the Land Use Element and Housing Element and is consistent with the goals and policies of all other elements. 2. The provisions of the First Amendment to the Development Agreement and the assurances that said agreement places upon the project are consistent with the provisions of Chapter 15.40 of the Moorpark Municipal Code because the Development Agreement and First Amendment contain the elements required by Section 15.40.030 and shall be processed through a duly -noticed public hearing process as required by law. SECTION 3. DETERMINATION THAT CITY ACQUISITION OF PROPERTY CONSISTENT WITH GENERAL PLAN: Based upon the information set for in the staff report(s), accompanying studies, and oral and written public testimony, the Planning Commission finds that the proposed acquisition of 6.54 acres of property referred to in the First Amendment to the Development Agreement (Exhibit A) as City Property is consistent with the General Plan SECTION 4. PLANNING COMMISSION RECOMMENDATION: The Planning Commission recommends to the City Council approval of First Amendment to the Development Agreement included in Exhibit B, attached hereto. SECTION 5. FILING OF RESOLUTION: The Interim Community Development Director shall cause a certified resolution to be filed in the book of original resolutions. Resolution No. PC -2021- 659 Page 3 The action of the foregoing direction was approved by the following vote: AYES: Commissioners Alva, Barrett, Brodsly, Rokos, and Chair Landis. NOES: None ABSTAIN: None ABSENT: None PASSED, AND ADOPTED this 27th day of July, 2021. Douglas Spondello, AICP Interim Community Development Director Kipp andis Ch 'r Exhibit A — First Amendment to the Development Agreement Resolution No. PC -2021- 659 Page 4 EXHIBIT A 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. Resolution No. PC -2021- 659 Page 5 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 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: 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"). Resolution No. PC -2021- 659 Page 6 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"; 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. 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 [DATE], the Planning Commission of the City commenced a duly noticed public hearing on the environmental determination, and this Resolution No. PC -2021- 659 Page 7 First Amendment, and at the conclusion of the hearing recommended approval of the environmental determination and this First Amendment. On [DATE], 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. XXX to approve this First Amendment. On [DATE], 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, the 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 execution and recording of the Amended and Restated Affordable Housing Agreement attached hereto as 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 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 Affordable 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) encumbering 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 Resolution No. PC -2021- 659 Page 8 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, 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 Resolution No. PC -2021- 659 Page 9 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 Prosect. 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 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 Resolution No. PC -2021- 659 Page 10 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 /Riverside/Orange County 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 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: Resolution No. PC -2021- 659 Page 11 Park Fees. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a one-time fee in lieu of the dedication of parkland and related improvements ("Park Fee"). The amount of the Park Fee shall be 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, for all urban consumers within the Los Angeles/Riverside/Orange County 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 seg. 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. 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 Resolution No. PC -2021- 659 Page 12 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: 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. Resolution No. PC -2021- 659 Page 13 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 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), 6.7 (Park Fees) and 6.12 (Air Quality Fees) to be paid for construction of the Project in the form of a $3,724,000 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. City Residual Receipts Loan. "Residual Receipts" means: (a) the sum of (i) all cash received from Project rents, lease payments and all other sources, but excluding (A) tenant security or other deposits (unless forfeited under the terms of the respective lease and in accordance with state law), (B) capital contributions of Borrower's partners and interest thereon (other than if used to pay for an item deducted below in determining Residual Receipts), (C) proceeds from a capital transaction and (D) interest on reserves not available for distribution, (ii) the net proceeds of any insurance, other than fire and extended coverage and title insurance, to the extent not reinvested, and (iii) any other funds deemed available for distribution by the Borrower's general partner with the approval of any regulatory agency, if required, less the sum of (i) all cash expenditures, and all expenses unpaid but properly accrued, which have been incurred in the operation of the Project (whether or not such Resolution No. PC -2021- 659 Page 14 expenditure is deducted, amortized or capitalized for tax purposes) including the management fee to the management agent, (ii) fees payable to any of Borrower's partners for partnership management, asset management, or administration services, (iii) deferred developer fees, (iv) all payments on account of any loans made to the Borrower with mandatory debt service payments, (iv) payment of any credit adjuster payments or loan repayments to the Borrower's limited partner, (v), and (vi) deposits to any cash reserves for working capital, capital expenditures, repairs, replacements and anticipated expenditures. 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 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" 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 Resolution No. PC -2021- 659 Page 15 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 G. Exhibit G to the Development Agreement is hereby deleted and is replaced by the new Exhibit G attached hereto. 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." 20. Operative Date of First Amendment. This First Amendment shall become operative on th date that Ordinance No. that approves this First Agreement becomes effective pursuant to Government Code Section 36937, subject to Section 2 of this First Amendment. 21. 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. 22. 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. Resolution No. PC -2021- 659 Page 16 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 is Print Name: Title: Resolution No. PC -2021- 659 Page 17 ALL SIGNATURES MUST BE NOTARIZED 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) Resolution No. PC -2021- 659 Page 18 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) Resolution No. PC -2021- 659 Page 19 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) 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 Resolution No. PC -2021-659 Page 21 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; 1 St Thence, departing said east line South 89038'32" West 752.05 feet; 2nd Thence, South 27020'34West 36.75 feet; 3rd Thence, South 89°03'54" West293.78 feet to a point in the west line of said Parcel 1 A. Resolution No. PC -2021-659 Page 22 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 Resolution No. PC -2021-659 Page 23 EXHIBIT D FORM OF AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT Resolution No. PC -2021-659 Page 24 EXHIBIT E FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST Resolution No. PC -2021-659 Page 25 EXHIBIT F DANCO SCHEDULE OF PERFORMANCE (DEADLINES) Resolution No. PC -2021-659 Page 26 NEW EXHIBIT "D" TO DA (POWER LINES)