HomeMy WebLinkAboutAGENDA REPORT 2022 0706 CCSA REG ITEM 11ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of July 6, 2022
ACTION ADOPTED ORDINANCE NO. 502.
(ROLL CALL VOTE: UNANIMOUS)
BY A. Hurtado.
A. Consider Second Reading of Ordinance No. 502, Approving Zone Change No.
2019-01 and Development Agreement No. 2019-01 for the Proposed Tract, Master
Planning and Development of 755 Residential Units, Approximately 29 Acres of
Open Space, a 7-Acre Public Park and 7-Acre Passive Park, as well as Roadways,
Stormwater and Detention Facilities, and Associated Improvements on 277 Acres
of Property Generally Located North of Poindexter Avenue, West of Casey Road,
and Extending Approximately 1,700 feet West of Gabbert Road on the Application
of Harriet Rapista on Behalf of Comstock Homes. Staff Recommendation: Waive
full reading, declare Ordinance No. 502 reading for the second time, and adopted
as read. (ROLL CALL VOTE REQUIRED)
Item: 11.A.
ORDINANCE NO. 502
AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA,
APPROVING ZONE CHANGE 2019-01 AND DEVELOPMENT
AGREEMENT NO. 2019-01 FOR THE PROPOSED TRACT, MASTER
PLANNING AND DEVELOPMENT OF 755 RESIDENTIAL UNITS,
APPROXIMATELY 29 ACRES OF OPEN SPACE, A 7-ACRE PUBLIC
PARK AND 7-ACRE PASSIVE PARK, AS WELL AS ROADWAYS,
STORMWATER AND DETENTION FACILITIES, AND ASSOCIATED
IMPROVEMENTS ON 277 ACRES OF PROPERTY GENERALLY
LOCATED NORTH OF POINDEXTER AVENUE, WEST OF CASEY
ROAD, AND EXTENDING APPROXIMATELY 1,700 FEET WEST OF
GABBERT ROAD ON THE APPLICATION OF HARRIET RAPISTA ON
BEHALF OF COMSTOCK HOMES
WHEREAS, on January 17, 2019, the Applicant submitted a formal development
application for the Hitch Ranch Specific Plan, general plan amendment, zone change, a
tentative tract map, and development agreement for the subdivision, master planning and
development of 755 residential units, approximately 29 acres of open space, a 7-acre
public park and 7-acre passive park, as well as roadways, stormwater and detention
facilities, and associated improvements on a 277 acre of property generally located north
of Poindexter Avenue, west of Casey Road, and extending approximately 1,700 feet west
of Gabbert Road and inclusive of Assessor Parcel Numbers 511-0-200-245, 511-0-020-
130, -110, -160, -170, -180, and -195 (the “Project”) on the application of Harriet Rapista
on behalf of Comstock Homes (the “Applicant”); and
WHEREAS, on July 10, 2019, the City of Moorpark Community Development
Department published pursuant to California Environmental Quality Act (CEQA) an Initial
Study and Notice of Preparation of an Environmental Impact Report (EIR) related to the
Hitch Ranch Specific Plan to receive input from interested public and private parties on
issues to be addressed in the EIR between July 10, 2019, and August 8, 2019. In
addition, a public scoping meeting was held on July 23, 2019, to provide information on
the Project and receive additional comments on issues to be addressed in the EIR; and
WHEREAS, on July 8, 2020, the City Council and Planning Commission jointly
held a publicly noticed workshop to review the Hitch Ranch Specific Plan and provide
preliminary direction regarding the proposed development; and
WHEREAS, on February 18, 2022, the City of Moorpark Community Development
Department published pursuant to CEQA a Notice of Availability and the Draft EIR for the
Hitch Ranch Specific Plan (State Clearinghouse Number 2019070253) analyzing the
Project’s potential impacts on the environment and accepted public comments in
accordance with CEQA Guidelines Section 15105 for a period of 45 days between
February 18, 2022, and April 4, 2022. Additionally, on March 14, 2022, the Planning
Commission held a publicly noticed meeting to review the Draft EIR and receive public
comments; and
Item: 11.A.
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Ordinance No. 502
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WHEREAS, the City prepared written responses to all comments received on the
Draft EIR and those responses to comments are incorporated into the Final EIR. The
Responses to Comments were distributed with the Final EIR to all public agencies that
submitted comments on the Draft EIR at least 10 days prior to certification of the Final
EIR; and
WHEREAS, the Final EIR is comprised of the Draft EIR dated February 2022 and
all appendices thereto, the Comments and Responses to Comments on the Draft EIR,
the clarifications, revisions, and corrections to the Draft EIR, and the Mitigation Monitoring
and Reporting Program, and the May 2022 Final EIR; and
WHEREAS, at a duly noticed public hearing on May 24, 2022, the Planning
Commission considered the Final EIR and proposed Project, 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 adopted
Resolution No. PC-2022-671 recommending that the City Council certify the Final EIR
and approve the Project; and
WHEREAS, at a duly noticed public hearing on June 15, 2022, the City Council
considered the Final EIR and proposed Project, 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 adopted
Resolution No. 2022-4104 certifying the Final EIR pursuant to the California
Environmental Quality Act including a Mitigation Monitoring and Reporting Program,
CEQA Findings of Fact, and Statement of Overriding Considerations for the Hitch Ranch
Specific Plan and approving Specific Plan No. 2019-01, General Plan Amendment 2020-
01, and Tentative Tract Map for Tract No. 5708 (2019-01) for the Project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
ORDAIN AS FOLLOWS:
SECTION 1. The findings made in this Ordinance are based upon the
information and evidence set forth in the certified Final EIR and upon other substantial
evidence that has been presented at the hearings and in the record of the proceedings.
The Final EIR, agenda reports, technical studies, appendices, plans, specifications, and
other documents and materials that constitute the record of proceedings on which this
Resolution is based are on file for public examination during normal business hours at the
City of Moorpark Community Development Department, 799 Moorpark Avenue,
Moorpark, CA 93021. Each of these documents is incorporated herein by reference.
SECTION 2. The City Council finds that agencies and interested members of the
public have been afforded ample notice and opportunity to comment on the Final EIR and
Project.
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Ordinance No. 502
Page 3
SECTION 3. Prior to taking action, the City Council has heard, been presented
with, reviewed and considered the information and data in the record, including oral and
written testimony presented for and during public hearings. The City’s independent
environmental consultants, City staff, and the Project Applicant’s environmental
consultants reviewed and analyzed the comments received on the Project’s
environmental review. No comments or any additional information submitted to the City
have produced any substantial new information requiring additional environmental review
or re-circulation of the EIR pursuant to CEQA because no new significant environmental
impacts were identified, nor was any substantial increase in the severity of any previously
disclosed environmental impacts identified.
SECTION 4. Section 15091 of the CEQA Guidelines requires that the City
Council, before approving the Project, make one or more written finding(s) for each
significant effect identified in the Final EIR accompanied by a brief explanation of the
rationale for each findings. These findings and the associated rationale are incorporated
by reference in Exhibit B of City Council Resolution No. 2022-4104.
SECTION 5. Pursuant to Public Resources Code Section 21081.6, the City
Council has adopted the Mitigation Monitoring and Reporting Program incorporated
herein by reference, and adopts each mitigation measure set forth therein, and impose
each mitigation measure as a condition of the Project’s approval via City Council
Resolution No. 2022-4104.
SECTION 6. FINDING OF GENERAL PLAN CONSISTENCY: Upon
recommendation by the Planning Commission, the City Council hereby finds the Project
and all associated actions to be consistent with the General Plan based upon the
information set forth in the staff report(s), accompanying studies, the Project Final EIR
and appendices, and oral and written public testimony, including but not limited to the
General Plan Consistency Analysis provided in Section 3.10 (Land Use and Planning) of
the Draft EIR incorporated by reference.
SECTION 7. ZONE CHANGE FINDINGS: Based upon the information set forth
in the agenda report(s), accompanying studies, the Project Final EIR and appendices,
and oral and written public testimony, the City Council finds that the proposed zone
change depicted in Exhibit A is consistent with the proposed General Plan land use
designation and existing General Plan, including the Housing Element, as outlined in
Section 3.10 of the Draft EIR.
SECTION 8. DEVELOPMENT AGREEMENT FINDINGS: Based upon the
information set forth in the staff report(s), accompanying studies, the Project Final EIR
and appendices, and oral and written public testimony, the City Council makes the
following findings in accordance with City of Moorpark, Municipal Code Section
15.40.100:
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Ordinance No. 502
Page 4
A. The provisions of the development agreement as depicted in Exhibit B are
consistent with the General Plan in that the Project will provide for the orderly
developed of land identified in the City’s General Plan and Zoning Ordinance
through the Project Specific Plan, as appropriate for residential development
and the Development Agreement will strengthen the planning process by
providing vesting development rights, addressing the timing of the development
of public and private improvements, determine development fees and the
provision of specific community benefits, including parks and affordable
housing. To that end, the Development Agreement serves to strengthen the
planning process by providing coordinated development that ensures minimal
impacts to the community and public facilities.
B. The provisions of the Development Agreement as depicted in Exhibit B 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 contains the elements required by Section 15.40.030
and shall be processed through a duly-noticed public hearing process as
required by law.
SECTION 9. CITY COUNCIL APPROVAL – THE CITY COUNCIL DOES HEREBY
ORDAIN AS FOLLOWS:
A. ZONING ORDINANCE AMENDMENT: Based on the findings and conclusions
set forth in the above sections, and based on all the other evidence in the
record, the City Council hereby approves Zone Change No. 2019-01 as
depicted in Exhibit A which amends the Zoning Map to reflect the designations
included in Exhibit A;
B. DEVELOPMENT AGREEMENT: Based on the findings and conclusions set
forth in the above sections, and based on all the other evidence in the record,
the City Council hereby approves Development Agreement No. 2019-01 as
depicted in Exhibit B.
SECTION 10. If any section, subsection, sentence, clause, phrase, part or portion
of this ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this ordinance. The City Council declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions may be declared invalid or unconstitutional.
SECTION 11. This ordinance shall become effective 30 days after its passage
and adoption. A summary of this ordinance shall, within 15 days after passage, be
published in accordance with Section 36933 of the Government Code of the State of
California with the names of the City Councilmembers voting for and against it.
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Ordinance No. 502
Page 5
SECTION 12. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of the City; shall make
a written record of the passage and adoption thereof in the minutes of the proceedings of
the City Council at which the same is passed and adopted; and shall publish notice of
adoption in the manner required by law.
PASSED AND ADOPTED this 6th of July, 2022.
__________________________________
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Attachments:
Exhibit A: Zone Change No. 2019-01 Exhibit
Exhibit B: Development Agreement No. 2019-01 with Exhibits
348
RPD-20DU-N-D
Hitch Ranch Specific Plan
AE
Agricultural Exclusive
EXHIBIT AOrdinance No. 502
Page 6
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Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER’S FEES
Pursuant to Government Code
§6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
RWC HITCH RANCH, LLC
Ordinance No. 502
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DEVELOPMENT AGREEMENT
This Development Agreement the (“Agreement”) is made and entered into on
______________, 2022 by and between the CITY OF MOORPARK, a municipal
corporation (referred to hereinafter as “City”) and RWC HITCH RANCH, LLC, a Delaware
Limited Liability Company the owners of a legal or equitable interest with respect to certain
real property within the City of Moorpark generally referred to as Residential Planned
Development Permit 2019-01 (referred to hereinafter as “Developer”). City and
Developer are referred to hereinafter collectively as a “Party” and collectively as the
“Parties.” In consideration of the mutual covenants and agreements contained in this
Agreement, City and Developer agree as follows:
1.Recitals. This Agreement is made with respect to the following facts and for the
following purposes, each of which is acknowledged as true and correct by the
Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark
Municipal Code Chapter 15.40, City is authorized to enter into a binding
contractual agreement with any person having a legal or equitable interest
in real property within its boundaries for the development of such property
in order to establish certainty in the development process.
1.2 RWC Hitch Ranch, LLC and CCA Management, LLC each hold a legal or
equitable interest with respect to certain real property in the City of
Moorpark identified in the legal description set forth in Exhibit “A” which
exhibit is attached hereto and incorporated by reference, commonly
known as Hitch Ranch, referred to hereinafter as the “Property”.
Developer’s interest in the Property is an option holder.
1.3 Prior to, and in connection with, the approval of this Agreement, the City
Council reviewed the project to be developed pursuant to this Agreement
as required by the California Environmental Quality Act (“CEQA.”) On
__________, 2022, the City Council adopted Resolution No. 2022-____,
adopting the Environmental Impact Report (“EIR”) and Mitigation
Monitoring and Reporting Program the (“MMRP”) prepared for this
Agreement and the Project Approvals as defined in Subsection 1.4 of this
Agreement.
1.4 General Plan Amendment (GPA) No. 2020-01, Zone Change
(ZC) No. 2019-01, Hitch Ranch Specific Plan (2019-01), Tentative Tract
Map (TTM) No. 5708, including all subsequently approved modifications
and permit adjustments and all amendments thereto, including without
limitation the Residential Planned Development (RPD) Permit No. 2020-
01, (collectively “the Project Approvals”; individually “a Project Approval”)
provide for the development of the Property with 755 residential units
comprised of a mix of multi-family units (which for purposes of this
Agreement shall mean residential structures consisting of two (2) or more
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attached residential dwelling units, both for sale and for rent) and single
family units, with the unit count or range for each type of unit as provided
for in the Hitch Ranch Specific Plan, and the construction of any
improvements in connection therewith (“the Project”). Consistent with the
Project Approvals, the Parties anticipate that during the Term of this
Agreement, Developer may seek from City Subsequent Approvals (as
defined below) that are necessary or desirable to implement the Project
Approvals.
1.5 By this Agreement, City desires to obtain the binding agreement of
Developer to develop the Property in accordance with the Project
Approvals and this Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.6 By this Agreement, Developer desires to obtain the binding agreement of
City to permit the development of the Property in accordance with the
Project Approvals and this Agreement. In consideration thereof,
Developer agrees to waive its rights to legally challenge the limitations and
conditions imposed upon the development of the Property pursuant to the
Project Approvals and this Agreement and to provide the public benefits
and improvements specified in this Agreement.
1.7 City and Developer acknowledge and agree that the consideration to be
exchanged pursuant to this Agreement is fair, just and reasonable and
that this Agreement is consistent with the General Plan of City, as
currently amended.
1.8 On __________, 2022, the Planning Commission commenced a duly
noticed public hearing on this Agreement, and at the conclusion of the
hearing on __________, 2022 recommended approval of this Agreement.
1.9 On __________, 2022, the City Council of City (“City Council”)
commenced a duly noticed public hearing on this Agreement, and
following the conclusion of the hearing closed the hearing and introduced
and provided first reading to Ordinance No. ___ (“the Enabling
Ordinance”) that approves this Agreement. Thereafter on __________,
2022, the City Council gave second reading to and adopted the Enabling
Ordinance.
1.10 Developer has expended and will continue to expend substantial amounts
of time and money planning and preparing for development of the Project.
City has expended and will continue to expend substantial amounts of
time and money processing the Project Approvals. The Parties desire to
utilize this Agreement as a means to ensure that the Developer’s interests
and the City’s interests with respect to the development of Hitch Ranch
are appropriately protected and balanced.
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2.Property Subject To This Agreement. All of the Property shall be subject to this
Agreement. The Property may also be referred to hereinafter as “the site” or the
“Project Site”.
3.Binding Effect; City Right to Terminate. If Developer or its Affiliate (as provided
in Section 3.3 below) does not acquire title to the Property (and provide
reasonable evidence thereof to City, like a copy of its owner’s title policy , or the
Deed conveying the Property) by the end of the fifth (5th) anniversary of the
Operative Date of this Agreement then the City Manager may, in his or her sole
and absolute discretion, terminate this Agreement (and any and all rights
theretofore accrued under this Agreement) by written notice to Developer, further
provided, however, that this Agreement shall not be effective with respect to or
binding upon owners of any interest in the Property other than Developer until
and unless Developer or its permitted assignees have acquired a fee interest in
the Property. Subject to the foregoing, the burdens of this Agreement are
binding upon, and the benefits of the Agreement inure to, each Party and each
successive successor in interest thereto (subject to Subsection 3.2 below) and
constitute covenants that run with the Property. Whenever the terms “City” and
“Developer” are used herein, such terms shall include every successive
successor in interest thereto.
3.1 Constructive Notice and Acceptance. Subject to the foregoing, every
person who acquires any right, title or interest in or to any portion of the
Property shall be conclusively deemed to have consented and agreed to
be bound by this Agreement to the extent the provisions of this Agreement
apply to the portion of the Property conveyed as of the effective date of
the conveyance or such provisions are of general applicability, whether or
not any reference to the Agreement is contained in the instrument by
which such person acquired such right, title or interest, subject to
Subsection 3.2 below.
3.2 Release Upon Subsequent Transfer of Title by Developer. Upon the
conveyance of Developer’s interest in the Property or any portion thereof
by Developer or its successor(s) in interest, and except as otherwise
provided in this Section, the transferor shall be released from its
obligations hereunder with respect to the portion of Property conveyed as
of the effective date of the conveyance, provided that the transferee
expressly assumes all obligations of the transferred portion of the Property
(and becomes an “Assignee” of this Agreement), and a copy of the
executed assignment and assumption agreement is delivered to the City
prior to the conveyance.
3.3 Developer may transfer all or any portion of its interests in the Property,
together with all its right, title and interest in any portion of this Agreement
that effects the transferred Property or portion of the Property, to any
transferee provided that if such transfer occurs prior to such time as the
public improvements in connection with the Property or portion of the
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Property have been completed by the Developer, then such transfer shall
be subject to City approval of the transfer, which approval shall be in
compliance with the provisions set forth below. City shall not
unreasonably withhold or unreasonably delay or condition consent to any
such transfer provided that as of the effective date of transfer: (1) the
transferee has specifically assumed in writing the obligations, or a portion
of the obligations of Developer that affect the transferred portion of the
Property, to design, construct, install and finally complete the public
improvements affecting the subject portion of the Project/Property, which
assignment and assumption agreement shall be reaso nably approved by
the City Manager to the extent provided in and consistent with this
Section; (2) the transferee has the experience and financial capacity to
complete the public improvements subject to such assignment and
assumption; (3) the transferee has obtained replacement bonds, accepted
by City for the public improvements (in which event, City shall release
Developer’s corresponding public improvement bonds); and (4) Developer
retains and does not transfer its obligation to provide an irrevocable off er
of dedication for, and then design and construct North Hills Parkway,
Casey Road, Gabbert Road, and High Street for the scope of
improvements as conceptually shown in Exhibit B the Regional Roadways
Exhibit (the “Regional Roadways”) unless Developer transfers its entire
interest in the Property and successor to Developer assumes all such
obligations. In the event of any transfer pursuant to this Section :
(i) Developer shall notify City within twenty (20) calendar days prior to the
transfer of the name of the Transferee, together with the corresponding
entitlements being transferred to the transferee and (ii) the agreement
between Developer and the transferee pertaining to the transfer shall
provide that the transferee shall be liable for the performance of those
obligations of Developer under this Agreement that relate to the
transferred Property, if any, in which case the Developer shall be released
by City from such assumed obligations (which release shall be included in
the assignment and assumption agreement as provided immediately
above) or shall confirm that Developer and all transferees shall remain
jointly liable for the design and construction of the public improvements
pursuant to this Agreement. Any, each and all successors and assigns of
Developer shall have all of the same rights, benefits, duties and
obligations of Developer under this Agreement to the extent of such
assignment and assumption. Notwithstanding the foregoing or anything to
the contrary contained in this Agreement, unless Developer transfers its
entire interest in the Property and successor to Developer assumes all
such obligations, Developer shall not transfer its obligation to provide an
irrevocable offer of dedication for, and then design and construct North
Hills Parkway, Casey Road, Gabbert Road, and High Street as provided in
the scope of improvements as conceptually shown in Exhibit B the
Regional Roadways Exhibit (the “Regional Roadways”). Notwithstanding
the foregoing or anything to the contrary contained in this Agreement,
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Developer shall not be required to submit the evidence and documentation
called for above or to obtain the prior consent of the City, if such sale,
transfer or assignment is to an Affiliate of Developer. For purposes of this
Section , "Affiliate" shall mean an entity that controls, is controlled by, or is
under common control of Developer.
3.4 Except as provided in Section 3.3, a default by any Assignee shall only
affect that portion of the Property/Project owned by such Assignee and
shall not cancel or diminish in any way Developer’s rights or obligations
hereunder with respect to the assigned portion of the Property/Project not
owned by such Assignee. The Assignee shall be responsible for the
reporting and annual review requirements relating to the portion of the
Property/Project owned by such Assignee. Any amendment to this
Agreement between City and Assignee shall only affect the portion of the
Property/Project owned by such Assignee which has been designated in
an assignment of assumption agreement to be the party responsible for
coordinating the reporting and annual review requirements of this
Agreement. Notwithstanding the foregoing, this Agreement shall not be
binding upon the transferee of a Completed Unit with respect to the
transferee’s interest in such Completed Unit, and the rights and
obligations of Developer under this Agreement shall not run with the
portion of the Property that is conveyed with the Completed Unit after such
conveyance of the Completed Unit by Developer or its successor in
interest(s). For purposes of this Agreement, “Completed Unit” means a
completed residential unit within the Property for which the City has issued
a final inspection or certificate of occupancy. Subject to the foregoing
limitation with respect to Completed Units, all of the provisions of this
Agreement shall be enforceable during the Term as equitable servitudes
and constitute covenants running with the land pursuant to applicable law,
including, but not limited to Civil Code Section 1468.
4. Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
4.1 Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project
Approvals, Subsequent Approvals, Applicable City Law (as defined
below), and this Agreement.
4.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height
and size of buildings, that shall be applicable to the Property are set forth
in the Project Approvals, Subsequent Approvals, Applicable City Law and
this Agreement.
4.3 Exemption from Hillside Management Standards. The Parties agree that
the Project shall be exempt from the Hillside Management Chapter of the
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Moorpark Municipal Code pursuant to subsection (m) of Section 17.38.030
of the Moorpark Municipal Code.
4.4 Building Standards. All construction on the Property shall adhere to
uniform construction codes generally-applicable City-wide 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 on a citywide basis (collectively “the Building Codes”).
4.5 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, Subsequent Approvals and this Agreem ent.
4.6 Applicable City Law. For purposes of this Agreement, “Applicable City
Law(s)” shall mean City laws in force and effect and generally-applicable
City-wide on the Operative Date, governing density, the design,
improvements, fees, and construction standards and specifications
applicable to the Project, including without limitation the applicable
provisions of the Moorpark General Plan, the Moorpark Municipal Code
and other City ordinances, resolutions, rules, regulations, policies,
standards and requirements, governing permitted uses of the Project Site,
and any new City laws that are not in conflict with any of the foregoing.
4.7 General Limitation on the Application of Changes to City Laws to the
Project. As provided in Moorpark Municipal Code Sec. 15.40.130.B, the
City may apply any amendments, changes, updates to Applicable City
Law or new City law (collectively “new City law”) to the Project that is not
in conflict with this Agreement, the Project Approvals, Subsequent
Approvals, and the Applicable City Law it describes, provided that the City
shall not apply any new City law to the Project that has the effect of or is
intended to:
(a)change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals;
(b)limit or reduce the density or intensity of the Project, or any part
thereof, or otherwise require any reduction in the number of
proposed buildings, square footage, floor area ratio, height of
buildings, or other improvements from what is allowed by this
Agreement or the Project Approvals;
(c)limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the
Project in any manner, or take any action or refrain from taking any
action that results in Developer having to substantially delay
construction of the Project or require the acquisition of additional
permits or approvals by the City other than those required by this
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Agreement, the Project Approvals, Subsequent Approvals, or the
Applicable City Law, provided that all infrastructure required by the
Project Approvals to serve the portion of the Property covered by
the Project Approval or Subsequent Approval is in place or is
scheduled to be in place prior to completion of construction;
(d)are not uniformly applied on a citywide basis to all substantially
similar types of development projects or to all properties with similar
land use designations;
(e)Limit or control the availability of public utilities, services, or facilities
otherwise allowed by the Project Approvals, Subsequent Approvals,
this Agreement or Applicable City Law;
(f)Institute or apply rent or income restrictions other than as
specifically provided in this Agreement;
(g)modify the land use from what is permitted by the City’s General
Plan Land Use Element at the Operative Date of this Agreement or
prohibit or restrict the establishment or expansion of urban services
including but not limited to community sewer systems to the
Project.
Any new City law that meets the foregoing requirements shall be Applicable
City Law. Pursuant to this Agreement, the Applicable City Law will be an
expanding body of law, such as, for example, when Subsequent Approvals
are granted by City, and/or when Developer becomes subject to a new City
law, but only to the extent and as provided in this Agreement.
4.8 Reservation of City Authority. Notwithstanding anything in this Agreement
to the contrary, the following new City laws shall apply to the Property and
the Project:
(a)Processing fees and charges of every kind and nature usually and
uniformly imposed by the City on applicants and projects of similar
nature to the Project and imposed by the City generally to cover the
estimated actual costs to City of processing applications for
Subsequent Approvals.
(b)Procedural regulations consistent with this Agreement relating to
hearing bodies, petitions, applications, notices, findings, records,
hearings, reports, recommendations, appeals and any other
matters of procedure, to the extent not in conflict with this
Agreement or the Project Approvals.
(c)Changes adopted by the City Council in the California Building
Code, California Residential Building Code, California Fire Code,
California Plumbing Code, California Mechanical Code, or
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California Electrical Code, California Green Building Standards
Code, California International Property Maintenance Code,
California Energy Code, California Historical Building Code,
California Existing Building Code, Uniform Housing Code, California
Administrative Code and Uniform Code for the Abatement of
Dangerous Buildings and similar uniform codes as required by and
in accordance with State law.
(d) Rules, regulations and official policies governing permitted uses of
the land, density, and design, improvement, and construction
standards and specifications existing after the Effective Date that
are not in conflict with the Development Approvals and this
Agreement.
(e) Rules, regulations and official policies governing permitted uses of
the land, density, and design, improvement, and construction
standards and specifications existing after the Effective Date that
are in conflict with the Development Approvals, provided Developer
has given written consent to the application of the rules, regulations
and policies to the Development.
(f) Federal, state, county and multi-jurisdictional laws and regulations
that City is required to enforce as against the Property or the
Development, whether or not the laws and regulations are in
conflict with the Project Approvals.
4.9 Modification or Suspension by Federal, State, County, or Multi-
Jurisdictional Law. In the event that federal, or state laws or regulations,
enacted after the Effective Date, prevent or preclude compliance with one
or more of the provisions of this Agreement, the provisions of this
Agreement shall be modified or suspended as may be necessary to
comply with the federal or state laws or regulations, and this Agreement
shall remain in full force and effect to the extent it is not inconsistent with
the laws or regulations and to the extent the laws or regulations do not
render the remaining provisions impractical to enforce.
5. Vesting of Development Rights.
5.1 Vested Right to Develop; Timing of Development. Developer and its
successors in interest shall have the vested right to develop the Property
in accordance with the terms and provisions of the Project Approvals, the
Subsequent Approvals (as and when issued), the Applicable City Law and
new City law (to the extent applicable to the Property as otherwise
provided in this Agreement), this Agreement and amendments to this
Agreement that may, from time to time, be approved pursuant to this
Agreement. The Parties intend that this Agreement, together with the
Project Approvals, shall serve as the controlling document for all
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subsequent actions, discretionary and ministerial, relating to the
development and occupancy of the Property, including, without limitation,
all Subsequent Approvals (as defined below). Developer shall have the
right, without obligation, to develop the Property in such order and at such
rate and times as Developer deems appropriate within the exercise of its
subjective business judgment.
No future amendment of any existing City ordinance or resolution, or future
adoption of any ordinance, resolution or other action, that purports to limit
the rate or timing of development over time or alter the sequencing of
development phases, whether adopted or imposed by the City C ouncil or
through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals, Subsequent Approvals and this Agreement. Nothing in this
subsection shall be construed to limit City’s right to ensure that Developer
timely provides all infrastructure required by the Project Approvals,
Subsequent Approvals, and this Agreement.
5.2 Amendment of Project Approvals; Subsequent Approvals. No amendment
of any of the Project Approvals or Subsequent Approvals , whether
adopted or approved by the City Council or through the initiative or
referendum process, shall apply to any portion of the Property, unless the
Developer has agreed in writing to the amendment to the Project
Approvals, Subsequent Approvals, as applicable.
5.3 Issuance of Subsequent Approvals; New City Law. Applications for land
use approvals, entitlements and permits, including without limitation
subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel,
and final maps), subdivision improvement agreements and other
agreements relating to the Project, lot line adjustments, preliminary and
final planned development permits, use permits, design review approvals
(e.g. site plans, architectural plans and landscaping plans), encroachment
permits, and sewer and water connections that are necessa ry to or
desirable for the development of the Project, building permits, and
amendments to the Project Approvals or any amendments to Subsequent
Approvals previously granted (collectively “the Subsequent Approvals”;
individually “a Subsequent Approval”) shall be consistent with, and be
governed by this Agreement, Project Approvals and the Applicable City
Laws.
5.4 Except as otherwise permitted by Section 4.7 and 4.8, so long as the
applications for the Subsequent Approvals substantially comply with this
Agreement and Applicable City Law and are substantially consistent with
the Project Approvals, as reasonably determined by City, City shall
process and grant the applications for Subsequent Approvals, provided
the approving body is able to make any required findings and
determinations required by Applicable City Law in connection with those
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applications. Upon submission by Developer of any application for a
Subsequent Approval, City shall commence and complete all steps
necessary to review and process the requested Subsequent Approvals in
good faith. City will review submittals for Subsequent Approvals for
consistency with any prior Project Approvals and use good faith efforts to
provide comments and make recommendations to Developer in
compliance with the applicable requirements of the Permit Streamlining
Act, Moorpark Municipal Code requirements and procedures and any
other timelines imposed by law, provided, however, that such commitment
is contingent upon the City not encountering delays in the review of those
applications by third-parties such as other public entities and public and
private utilities.
In reviewing and acting upon any application for a Subsequent Approval,
except as otherwise set forth in this Agreement, City shall not impose any
conditions that preclude the development of the Project for the uses or the
density and intensity of use set forth in this Agreement and the Project
Approvals. In reviewing and approving applications for Subsequent
Approvals, City may exercise its discretionary review and may attach such
conditions and requirements as may be deemed necessary or appropriate
to carry out the policies, goals, standards, and objectives of the City’s
General Plan, applicable Specific Plan, and to comply with legal
requirements and policies of City and applicable CEQA requirements
pertaining to such Subsequent Approvals, so long as such conditions and
requirements do not preclude the uses or the density and intensity of use
set forth in the Project Approvals and this Agreement.
Any City denial of an application under this section shall include a statement
of the reasons for such denial. Developer may appeal a denial as provided
by Applicable City Law.
Any Subsequent Approval or amendment to a Sub sequent Approval shall
be, upon approval or issuance, and after all appeal periods have expired or,
if an appeal is filed, if the appeal is decided in favor of the approval,
automatically vested and incorporated into this Agreement.
5.5 Modification of Approvals. Throughout the Term of this Agreement,
Developer shall have the right, at its election and without risk to or waiver
of any right that is vested in it pursuant to this section, to apply to City for
modifications to Project Approvals and Subsequent Approvals. The
approval or conditional approval of any such modification shall not require
an amendment to this Agreement, provided that, in addition to any other
findings that may be required in order to approve or conditionally approve
the modification, a finding is made that the modification is consistent with
this Agreement and does not alter the permitted uses, density, intensity,
maximum height, size of buildings or reservations and dedications as
contained in the Project Approvals except for Minor Modifications as
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provided. Any City denial of Developer’s request to modify the Project
Approvals shall be made in writing. Any City denial of a Subsequent
Approval shall include a written statement of decision, which will include
findings supporting that denial. Developer may appeal a denial as
provided by Applicable City Law.
5.6 Minor Modifications. The Parties acknowledge that refinement and further
implementation of the Project may demonstrate that certain minor
changes beyond those provided for in the Project Approvals may be
appropriate with respect to the details and performance of the Parties
under this Agreement. The Parties desire to retain a certain degree of
flexibility with respect to the details of the Project and with respect to those
items covered in the general terms of this Agreement. If and when the
Parties find that clarifications, minor changes, or minor adjustments
beyond those provided for in the Project Approvals are necessary or
appropriate, they shall effectuate such clarifications, minor changes, or
minor adjustments through a written “Minor Modification” approved in
writing by Developer and the City Manager or his or her designee, without
amending this Agreement, provided that the City Manager (or designee)
finds the Minor Modifications: (i) do not result in a change to the permitted
uses of the Property, the reservation or dedication of land for public
purposes, or the improvement and construction standards for the Project;
(ii) do not result in a material change in maximum residential density,
maximum intensity of use or the maximum height and size of buildings;
(iii) are substantially consistent with the Project Approvals and
Subsequent Approvals, if any; and (iv) are substantially consistent with the
provisions, purposes, and goals of this Agreement. A “material change”
means (i) any increase in the number of residential units, (ii) reserved; or
(iii) a change in a development standard by fifteen percent (15%) or more.
For example, for a height limit of 20 feet, a change of three feet or less is
deemed non-material. Unless otherwise required by law, no such Minor
Modification shall require prior notice or hearing, nor shall it constitute an
amendment to this Agreement. Any change that would otherwise fall
outside the scope of a Minor Modification under this subsection but which
the Developer demonstrates to the satisfaction of the City Manager (or
designee), in his or her sole and absolute discretion, is necessary to allow
for an increase in the number of affordable housing units in a building,
may be approved by the City Manager (or designee) as a “Minor
Modification.” The City Manager’s (or designee’s) determination may be
appealed to the Planning Commission which may review such
determination in its sole and absolute discretion.
5.7 Development Timing. Developer shall be obligated to comply with the
terms and conditions of the Project Approvals, Subsequent Approvals, and
this Agreement at those times specified in either the Project Approvals,
Subsequent Approvals, or this Agreement. The Parties acknowledge that
Developer cannot at this time predict with certainty when or the rate at
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which phases of the Project Site would be developed. Such decisions
depend upon numerous factors that are not all within the control of
Developer, such as market orientation and demand, interest rates,
competition, and other factors. Because the California Supreme Court
held, in Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465
(1984), that the failure of the parties therein to provide for the timing of
development resulted in a later adopted initiative restricting the timing of
development controlling the parties’ agreement, it is the intent of the
Parties to hereby acknowledge and provide for the right of Developer to
develop the Project in such order and at such rate and times as Developer
deems appropriate within the exercise of its sole and subjective business
judgment, subject to the terms, requirements and conditions of the Project
Approvals, Subsequent Approvals, and this Agreement, provided that any
such discretion is not intended to obviate or otherwise delay the
completion of infrastructure required to serve each phase as it is
constructed or to delay completion of major public improvements when
required by the Project Approvals. City acknowledges that such a right is
consistent with the intent, purpose, and understanding of the Parties to
this Agreement, and that without such a right Developer’s development of
the Project would be subject to the uncertainties sought to be avoided by
the Development Agreement Statute, Development Agreement Ordinance,
and this Agreement. Developer will use its best efforts, in accordance with
Developer’s subjective business judgment and taking into consideration
market conditions and other economic factors influencing Developer’s
subjective business decision, to commence or to continue development,
and to develop the Project in a regular, progressive, and timely manner in
accordance with the provisions and conditions of this Agreement and with
the Project Approvals.
5.8 Issuance of Building Permits. No Building Permit shall be unreasonably
withheld or delayed from Developer if Developer is in compliance with this
Agreement and the Project Approvals and Subsequent Approvals. In
addition, no final inspection or Certificate of Occupancy will be
unreasonably withheld or delayed from Developer if all infrastructure
required by the Project Approvals, Subsequent Approvals, and this
Agreement to serve the portion of the Property covered by the Building
Permit is in place, or is scheduled to be in place prior to completion of
construction, the Developer is in compliance with all provisions of this
Agreement, the Project Approvals and Subsequent Approvals, and all of
the other relevant provisions of the Project Approvals, Subsequent
Approvals and this Agreement have been satisfied. Consistent with
Subsection 5.1 of this Agreement, in no event shall building permits be
allocated on any annual numerical basis or on any arbitrary allocation
basis.
5.9 Moratorium on Development. To the extent consistent with state law (and
excepting a declaration of a local emergency or state emergency as
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defined in Government Code section 65858 or 8558), if any ordinance,
resolution, or other measure is enacted subsequent to the Operative Date,
whether by action of City, by initiative, referendum, or otherwise, that
imposes a building moratorium, a limit on the rate of development, or a
voter-approval requirement that would otherwise create an additional
procedural requirement or affect the timely development o f the Project on
all or any part of the Project Site, City agrees that such ordinance,
resolution, or other measure shall not apply to the Project, the Project Site,
this Agreement, the Project Approvals, or the Subsequent Approvals, if
any, during the Term.
5.10 Life of Project Approvals or Subsequent Approvals. The term of any
Tentative Map for the Project shall be automatically extended for the Term
of this Agreement. The term of any other Project Approval or Subsequent
Approval (other than a Tentative Map) shall automatically be extended so
that the term of that Project Approval or Subsequent Approval has a total
duration of five (5) years (inclusive of the time granted as part of the
underlying Approval.) The term of any Project Approval or Subsequent
Approval shall not include any period of time during which any applicable
development or utility moratorium, lawsuit, referendum, or action by any
other public agency that regulates or affects land use delays development
of the Project Site (“Enforced Delay”). In the event of any such Enforced
Delay, the term of Project Approval or Subsequent Approval shall be
extended for as many days as the Enforced Delay occurs, as reasonably
determined by the City Manager, but not to exceed five (5) years unless
otherwise required and provided by state law.
6. Developer Agreements.
6.1 Development as a Residential Project. Developer shall comply with (i) this
Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for
which it was the applicant or a successor in interest to the applicant and
(iv) the MMRP of the EIR and any subsequent or supplemental
environmental actions (v) standards outlined in the Hitch Ranch Specific
Plan. Developer agrees not to apply for any non-residential uses on the
Property. The Recreation Centers/clubhouses and private recreational
facilities within any gated communities shall be considered to be part of
the residential uses.
6.2 Condition of Dedicated or Conveyed Property. All lands and interests in
land dedicated to City, including without limitation North Hills Parkway,
High Street, Casey Road, Gabbert Road, Meridian Hills Parkway, A
Street, Park A, and Park B, shall be free and clear of liens and
encumbrances other than easements or restrictions that do not preclude
or interfere with use of the land or interest for its intended purpose, as
reasonably determined by the City Engineer or the City Manager.
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6.3 Traffic Mitigation Requirements. In full satisfaction of all traffic mitigation
requirements and obligations imposed with respect to the Project and as
conditions to the Project Approvals, Developer shall construct or cause the
construction of the extension of North Hills Parkway, Casey Road,
Gabbert Road, and High Street, in the locations as provided, and to the
scope as conceptually shown in Exhibit B (the “Regional Roadways
Exhibit”). Within twelve (12) months after the date of issuance of the first
grading permit issued with respect to the Project, Developer agrees to
provide City an irrevocable offer of dedication to dedicate right-of-way at
no cost to City for the future North Hills Parkway throughout the entirety of
the Property. As further clarification of the Regional Roadways Exhibit,
the right-of-way required for North Hills Parkway shall be a minimum of
two hundred (200) feet in width and shall also include necessary on-site
and off-site slope easements. Developer further agrees to dedicate
access rights from the Property to the City along the entire North Hills
Parkway frontage, except for private streets as part of the Tract Map for
this Project. At the time set forth in the conditions of approval applicable to
the Project as provided in the Project Approvals, Developer shall design
and construct the public street improvements for (a) North Hills Parkway to
a total width of a maximum of four lanes (two in each direction) throughout
the entirety of the Property, (b) Gabbert Road from North Hills Parkway to
High Street to a total width of a maximum of four lanes (two in each
direction), and (c) Gabbert Road North of North Hills Parkway to a
maximum width of two lanes (one in each direction) to the northerly
boundary of the Property. The required roadway improvements to be
included in Developer’s traffic improvements as provided in this section
shall include curb and gutter, sidewalks, streetlights, parkway and median
landscaping, street paving, and utilities to the extent required by the
applicable improvement plans (provided that final lift of street paving may
be delayed until final completion of adjacent improvements). The portions
of North Hills Parkway at its intersection with Gabbert Road and the
Gabbert Road improvements shall be subject to a cost-sharing agreement
with the Burns-Pacific Construction property (Final Map No. 5906 ), and
the Rasmussen property (RPD No. 2016-02).
6.4 Development Fee Per Unit. As a condition of the final inspection for each
residential dwelling unit within the Property, Developer shall pay City a
one-time development fee as described herein (the “Development Fee”).
The Development Fee may be expended by City in its sole and unfettered
discretion. The amount of the Development Fee shall be Nine Thousand
Two Hundred Dollars ($9,200.00) per single-family residential unit and
Seven Thousand Eighty-Four Dollars ($7,084.00) per multi-family
residential unit. The Development Fee shall be adjusted annually
commencing January 1, 2024, by the Consumer Price Index (CPI). The
annual CPI adjustment shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
all urban consumers within the Los Angeles/Long Beach/Anaheim
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metropolitan area during the prior year. The calculation shall be made
using the month of October over the prior October.
In the event there is a decrease in the referenced Index for any
annual indexing, the current amount of the fee shall remain until such time
as the next subsequent annual indexing which results in an increase.
6.5 Gabbert Road Railroad Crossing Contribution. Developer agrees to
contribute to the cost of the design and construction of Gabbert Road and
the Union Pacific railroad crossing by paying the City five hundred
thousand ($500,000.00) no later than before the final inspection of the
200th dwelling unit within the project. Said funds shall be deposited into
the City’s Traffic Mitigation Fund to be used in conjunction with other funds
collected by the City for the purpose of widening and making other
improvements to that intersection to improve vehicular and pedestrian
traffic flow through that intersection.
6.6 Los Angeles Avenue Area of Contribution (LAAOC) Fees. As a condition
of final inspection for each residential dwelling unit within the boundaries
of the Property, Developer shall pay City a one-time Los Angeles Avenue
Area of Contribution fee as described herein (“LAAOC”). The LAAOC Fee
shall be Ten Thousand One Hundred Thirty-Four Dollars ($10,134.00) per
single-family residential unit and Seven Thousand Eight Hundred Three
Dollars ($7,803.00) per multi-family residential unit within the Property to
be paid prior to final inspection for each residential dwelling unit in the
Project. If the LAAOC Fee is not paid by January 1, 2024, then
commencing on January 1, 2024, and annually thereafter, the LAAOC Fee
shall be adjusted by any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be determined by using
the information provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The calculation
shall be made using the month of October over the prior month of
October. In the event there is a decrease in the CPI for any annual
indexing, the fee shall remain at its then current amount until such time as
the next subsequent annual indexing which results in an increase.
6.7 Air Quality Fees. Developer agrees that the Mitigation Measures included
in the City Council approved EIR and MMRP, or subsequent
environmental clearance document approved by the Council, set forth the
mitigation requirements for air quality impacts. Developer agrees to pay to
City a one-time air quality mitigation fee, as described herein (“Air Quality
Fee”), in satisfaction of the Transportation Demand Management Fund
mitigation requirement for the Project. The Air Quality Fee may be
expended by City in its sole discretion for reduction of regional air pollution
emissions and to mitigate residual Project air quality impacts.
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The Air Quality Fee shall be One Thousand Seven Hundred Nine
Dollars ($1,709.00) per single-family residential unit and One Thousand
Three Hundred Sixteen Dollars ($1,316.00) per multi-family residential unit
within the Property to be paid prior to f inal inspection for each residential
dwelling unit in the Project. If the Air Quality Fee is not paid by
January 1, 2024, then commencing on January 1, 2024, and annually
thereafter, the Air Quality Fee shall be adjusted by any increase in the
Consumer Price Index (CPI) until all fees have been paid. The CPI increase
shall be determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics, for all urban
consumers within the Los Angeles/Long Beach/Anaheim metropolit an area
during the prior year. The calculation shall be made using the month of
October over the prior month of October. In the event there is a decrease
in the CPI for any annual indexing, the fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.8 Arroyo Vista Park Improvements / Park Fees.
The City intends to improve the 14-acre Edison property at Arroyo Vista
Community park for active recreational uses by the City. Improvements
may include at a minimum: three soccer fields, turf, irrigation and
associated vehicular parking spaces, the area to be improved is shown in
Exhibit C, attached (the “Arroyo Vista Park Project”). In partial satisfaction
of the park fees owing with respect to the Project, Developer will pay to the
City the amount of Two Million Dollars ($2,000,000 .00) (the “Arroyo Vista
Payment Obligation”) in full satisfaction of the Arroyo Vista Payment
Obligation, prior to final inspection for the 200th residential unit of the
Project. Developer shall satisfy the Arroyo Vista Payment Obligation by
paying to the City the sum of Two Million Dollars ($2,000,000.00).
Prior to final inspection 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
Two Thousand Eight Hundred Dollars ($2,800.00) for each residential
dwelling unit within the Property. If the Park Fee (but not the Arroyo Vista
Payment Obligation) is not paid by January 1, 2024, the Park Fee (but not
the Arroyo Vista Payment Obligation) shall be adjusted annually
commencing January 1, 2024, as follows:
The change in the CPI. The change shall be determined by using the
information provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area durin g the prior year. The calculation
shall be made using the month of October over the prior October. In the
event there is a decrease in the CPI for any annual indexing, the Park Fee
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shall remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase.
Developer agrees to fully construct the 7.23 acre Park A (Passive Park) and
6.77 acre Park B (Active Park) in the locations as shown in Exhibit D at its
sole cost, consistent with the standards of other similar parks located in the
City. Design of Park B is subject to the recommendation of the Parks
Commission and approval of the City Council. Developer shall commence
construction of Park B prior to the 400th building permit for a market rate
Unit being issued, and Developer shall complete construction of Park B prior
to the 600th building permit for a market rate Unit being issued.
Developer agrees that the above-described payments shall be deemed to
satisfy the parkland dedication requirement set forth in California
Government Code Section 66477 et seq. (“Quimby Act”) for the Property.
6.9 Community Services Fee. As a condition of final inspection for each
residential dwelling unit within the boundaries of the Project, Developer
shall pay City a one-time community services fee as described herein
(Community Services Fee). The Community Services Fees may be
expended by City in its sole and unfettered discretion. The amount of the
Community Services Fees shall be Two Thousand Seven Hundred Dollars
($2,700.00) per single-family residential unit and Two Thousand Seventy-
Nine Dollars ($2,079.00) per multi-family residential unit within the
Property to be paid prior final inspection for each residential dwelling unit
in the Project. Commencing on January 1, 2024, and annually thereafter,
the Community Services Fee shall be adjusted by any increase in the
Consumer Price Index (CPI) until all Community Service Fee have been
paid. The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
All Urban Consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during this prior year. The calculation shall be made
using the month of October over the prior month of Octo ber or in the event
there is a decrease in the CPI for any annual indexing, the Community
Service Fee shall remain at its then current amount until such time as the
next subsequent annual indexing which results in an increase.
6.10 Art in Public Places Fee. Developer agrees to pay the Art in Public Places
Fee (“Art Fee”) at the time of final inspection for each building prior to final
inspection for that residential building within the Project consistent with
City Resolution No. 2005-2408 (in the amount of one percent (1.0%) of
total building valuations excluding land value and off-site improvement
costs). Alternatively, Developer, in its sole discretion, may work with local
artists and foundations to create art installations or forums within the linear
park area within the Project and adjacent to High Street (the “Alternative
Art Obligation”). If the Developer elects to satisfy this requirement
pursuant to the Alternative Art Obligation, then as of the date one year
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after the issuance of the final building permit for the last unit of the Project,
the Developer shall submit a reasonable accounting of the costs incurred
by Developer in satisfaction of the Alternative Art Obligation for approval
by the City Manager or City Development Director. If the final Alternative
Art Obligation cost is less than the Art Fee for the Project, the Developer
shall pay the difference. This Section does not obligate the City to
reimburse the Developer for any amount by which the Alternative Art
Obligation costs exceed the amount of the Art Fee.
6.11 Other Development and Processing Fees. Notwithstanding anything to
the contrary in this Agreement, the Project and Project site shall only be
subject to those development impact fees as set forth in this Section 6, in
the amounts as provided herein, including any CPI adjustment as provided
herein (“Impact Fees”). The City shall not impose any new categories of
Impact Fees on the development of the Project or the Project Site
(including required contributions of land, public amenities , or services)
from and after the Operative Date. Any substitute Impact Fees that
replace any Impact Fees listed in Section 6 of this Agreement (but do not
expand the purpose or scope of, or increase the amounts or costs beyond,
those as provided herein) shall apply to the Project, and shall not be
considered new categories of Impact Fee as set forth above. If the City
reduces the amount of any Impact Fees shown in this Section 6 the
Project will be subject to the lesser amount. In addition to fees specifically
mentioned in this Agreement, Developer agrees to pay for the costs to
City of processing any and all Developer-requested land use approvals,
including without limitation, entitlement processing fees, whether such
processing fees or the amount of those processing fees were in effect
prior to the Operative Date, and plan check and permit fees for buildings
and public improvements at the rate and amounts then generally in effect
so long as such fees are imposed on projects similar to the Project or on
property similar to the Property.
6.12 Processing Fees. On or before the Operative Date, Developer shall pay
all outstanding City processing costs related to preparation of this
Agreement, the Project Approvals and the EIR.
6.13 Financing District(s).
(a) It is the mutual intent of the Parties that the development of the
Project will not have any fiscal impact on or require any contribution
from the General Fund of the City. Project funding for costs of the
development of the Project may include a mix of different
approaches, including without limitation, Developer construction of
and/or financing of such services, facilities, operations and
maintenance through the payment of Impact Fees or other fees,
taxes, levies, assessments, formation of and payment by a
homeowner’s association, or other financing mechanisms as
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determined by Developer in its reasonable discretion, pursuant and
subject to this Agreement, the Project Approvals, Subsequent
Approvals and all Applicable City Law, taking into account and
guided by the pre-existing rights of others in the existing and future
public services and facilities (including their operations and
maintenance) that Developer may seek to use. To facilitate such
intent, as necessary, the Developer may request the City to form
one or more assessment or financing districts (“District(s)”),
pursuant to Chapter 2.5 of Part 1 of Division 2 of the California
Government Code (Government Code Sections 53311 et seq.) (the
“CFD Act”), the Streets and Highways Code, Division 10 and 12,
the Landscape and Lighting Act of 1972, or other similar law for the
purposes of funding services required to be provided or funded
under this Agreement, as Developer agrees to implement and the
City determines are lawfully and appropriately funded by the
District. To the extent other property owners outside the Property
are interested or benefit and are made part of such District, such
other properties may be encompassed in such District in
accordance with applicable law.
(b) A District or other funding mechanism to the satisfaction of the City
Council and acceptable to Developer, shall be established to
provide funding for roadway, park, and landscape maintenance in
the area as shown in Exhibit D as “Roadway, Park, and Landscape
Maintenance Area”. It is the intent of this Exhibit that the
Homeowners’ Association for the Project shall be responsible for
the maintenance of those areas and facilities that exclusively
benefit residents of the Project, which shall exclude costs related to
maintaining public dedicated roadways, parks, and landscape
improvements in public areas within the project.
(c) In connection with the formation of a District, Developer shall: (i) file
with the City a petition for the formation of the District, (ii) provide
any deposit required by the applicable act, (iii) not oppose
formation of the District and (iv) vote in favor of the special tax or
assessment, as appropriate, to fund the District.
(d) Developer acknowledges and agrees that the City will not accept
any improvements or facilities to be maintained by the District nor
shall the Developer receive any payments from the District for any
improvements or facilities until such facilities and improvements
have been inspected and the City determines in its reasonable
discretion, that such improvements and facilities have been
completed in accordance with the applicable plans, and have no
liens outstanding.
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(e)The City and Developer agree that the assessments or special
taxes for any District formed will be collected from parcels in the
District as provided in the rate and method of apportionment (RMA)
prepared for that District.
(f)Upon written request of City, Developer will advance amounts
necessary to pay all costs and expenses of City to evaluate and
structure any District or other financing mechanism, to the end that
City will not be obligated to pay any costs related to the formation
or implementation of any District or other financing mechanism.
City staff shall meet with the Developer to establish a preliminary
budget for such costs, and will confer with Developer from time to
time as to any necessary modifications to that budget. Any District
may provide for the reimbursement to Developer of any advances
by Developer for any costs incurred as provided immediately
above, and any other costs incurred by Developer that are related
to the District, such as the costs of legal counsel, special tax
consultants, engineers, etc.
6.14 Densities Allowed for Development and Affordable Housing.
(a)Developer shall construct or cause to be constructed in the Project
not less than fifteen percent (15%) of the total number of housing
units (excluding the Affordable Housing Units required by this
section, as defined immediately below) as multi-family apartment
housing units, which shall be available for occupancy at an
Affordable Rent by Eligible Households (as such terms are defined
below) to very low and low income households (the “Affordable
Housing Units”).
(b)Developer explicitly acknowledges that its agreement to construct
the Affordable Housing Units is given as consideration for City’s
willingness to negotiate and enter into this Agreement and for the
valuable consideration given by City through this Agreement.
Developer further acknowledges that its agreement to construct
these affordable units is not the result of an existing policy or
regulation imposed by City but instead is the result of arm’s length
negotiation between Parties.
(c)Developer further agrees that it shall provide the required number
of Affordable Housing Units as specified above regardless of the
cost to acquire or construct said Affordable Housing Units.
Developer further agrees that City has no obligation to use eminent
domain proceedings to acquire any of the required Affordable
Housing Units and that this Subsection 6.14 is specifically exempt
from the requirements of Subsection 7.2.
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(d) Prior to recordation of the first Final Map for this Project, the parties
agree to execute an Affordable Housing Agreement (“Affordable
Housing Agreement”) that sets forth the Developer’s and City’s
obligations and provides procedures and requirements to ensure
that all of the required Affordable Housing Units are provided
consistent with this Agreement and applicable State laws and
remains affordable for the longest feasible time. The Affordable
Housing Agreement shall include but not be limited to the following
items: renter eligibility, affordability and restrictions. The City may,
but is not required to consider including in the Affordable Housing
Agreement the City’s agreement to defer the payment of all Impact
Fees imposed with respect to the Affordable Housing Units in
compliance with and subject to the requirements of Cal. Labor
Code Sec. 1720(c)(5)(E) and other applicable law as part of an
application by Developer that seeks to obtain funding subject to
requirements established by the California Tax Credit Allocation
Committee (“CTCAC”). The Agreement shall also include
provisions regarding the respective role of City and Developer, the
responsibility of providing the Affordable Housing Units by each
successor developer in the event of successors and/or assigns to
this Agreement, quality of and responsibility for selection of
amenities and applicability of home warranties to meet all or a
portion of its obligation and any other items determined necessary
by the City. Developer shall pay the City’s direct costs for
preparation and review of the Affordable Housing Agreement up to
a maximum of ten-thousand Dollars ($10,000.00). The Affordable
Housing Agreement and the terms of this Agreement shall be
subject to modification and subordination to the extent required for
the Affordable Housing Units by lenders providing construction and
permanent financing for the Affordable Housing Units to meet the
funding requirements established by CTCAC, if the Developer
seeks funding for the Affordable Housing Units from CTCAC and
related Housing Tax Credit Programs that provide tax credits for the
construction and development of affordable units.
(e) The Affordable Housing Units required by this Agreement are
consideration for City’s entry into this Agreement and therefor none
of the Affordable Housing Units shall duplicate or substitute for the
affordable housing requirement of any other developer or
development project. All subsequent approvals required of City
under this Subsection 6.14 shall be made consistent with the
provisions of this Agreement.
(f) The Affordable Housing Agreement shall provide that the
Affordable Housing Units shall be offered for occupancy at an
Affordable Rent by Eligible Households to very low and low income
households. For purposes of this Agreement, “Affordable Rent” is
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the amount of rent considered as “affordable rent” for very low and
low income households, adjusted for family size appropriate to the
unit, less a utility allowance, pursuant to California Health and
Safety Code Section 50053(b)(2) and (3) or any successor statute
thereto. If the statute is no longer in effect and no s uccessor
statute is enacted, the City shall establish the Affordable Rent for
purposes of this Agreement. For purposes of this Agreement
“adjusted for family size appropriate to the unit” shall mean a
household of two persons in the case of a one-bedroom unit, three
persons in the case of a two-bedroom unit, four persons in the case
of a three-bedroom unit, and five persons in the case of a four-
bedroom unit. For purposes of this Agreement, “Eligible
Households” shall mean households meeting the income
restrictions for low and very low income households based on Area
Median Income as published from time to time by the California
Department of Housing and Community Development. For
purposes of this Agreement, “Area Median Income” shall mean the
median income for households in the County in which the Property
is located as published from time to time by the United States
Department of Housing and Urban Development (“HUD”) in a
manner consistent with the determination of median gross income
under Section 8 of the United States Housing Act of 1937, as
amended, and as defined in Title 25, California Code of
Regulations, Section 6932. In the event that such income
determinations are no longer published by HUD, or are not updated
for a period of at least 18 months, the City shall provide the
Developer with other income determinations that are reasonably
similar with respect to methods of calculation to those previously
published by HUD. If the Affordable Housing Units are financed in
part through an allocation of federal or state low income housing
tax credits, then for purposes of this Agreement, the definitions of
"Affordable Rent", "Eligible Household" and "Area Median Income"
will be replaced with the affordable rent, required income levels and
related definitions as required in order to meet the CTCAC
minimum affordability requirements as published annually by
CTCAC for not more than 49% of the Affordable Housing Units. .
(g) Developer warrants that the Affordable Housing Units shall be
subject to all Conditions of Approval and shall meet all Building
Codes.
(h) The minimum size per bedroom type and allocation of bedroom
types and amenity level with respect to Affordable Housing Units as
provided in this Section shall be the greater of that shown on
Schedule 6.14(h) attached or the minimum requirements of CTCAC
with respect to size and amenity level for such units as set forth in
the California Code of Regulations, Title 4, Division 17, Chapter 1.
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The floor plan and size of the Affordable Housing Units shall be
approved by the Community Development Director and City staff
person responsible for City’s Affordable Housing Programs
consistent with the foregoing requirement.
(i) Developer agrees that the construction of the Affordable Housing
Units must proceed on terms consistent with this Agreement and
the Affordable Housing Agreement as specified in the following
schedule:
Market Rate Units Affordable Unit(s)
Building Permit for 400th
Unit
Building Permit for
Affordable Housing Unit
Buildings
Building Permit for 600th
Unit
Certificate of Occupancy for
Affordable Housing Units
Building
6.15 Conveyance of City Site to City. In consideration of this Agreement,
Developer shall convey to City the real property consisting of
approximately 23.36 acres more particularly described on Exhibit “E” (the
“City Site”) in accordance with the terms and conditions hereinafter set
forth.
Upon its conveyance to the City, the City Site may be used for any
municipal purpose or may be conveyed in whole or in part for private
development use. At present, the City intends to develop the City Site in
part for residential use, and in part for use as a passive park and a storm
drainage detention/retention facility. Developer acknowledges that the
City is contemplating a low and very low income housing development
with a minimum density of 20 units to the acre on the City Site.
Developer hereby covenants, represents and warrants that: (i) Developer
shall not further encumber the City Site, and the City Site will be delivered
free of all liens, and free of all other encumbrances unless otherwise agreed
to by the City Manager subject only to exceptio ns
__________________________ in that certain preliminary report dated
__________________issued by ____________Title Company,
___________________ (“Title Company”) under Order Number
______________ (the “PTR”) and the REA/CC&Rs for the City Site
described below and other easements or encumbrances reasonably
required for the development of the Project (“Permitted Exceptions”);
(ii) Developer shall not improve or alter the City Site except with the City
Site Improvements (defined and described below); (iii) to Developer’s actual
knowledge without duty of further investigation, the City Site does not
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contain any hazardous materials; (iv) Developer represents that is has
disclosed to City in writing all material facts regarding the City Site actually
known to Developer and covenants that if Developer obtains actual
knowledge of any material facts prior to closing, Developer will inform City
in writing of those facts (iv) except as provided immediately above, the City
Site shall be conveyed to City as-is, where is and without any
representations and warranties of any kind. For the purposes of this
Agreement, Developer’s actual knowledge or words to similar effect shall
mean the actual knowledge of the Developer’s project manager for the
Project, without any duty of investigation.
Developer shall fully cooperate with the Title Company in order to facilitate
the issuance of an owner’s title policy to City upon the closing of the
conveyance (for example, Developer shall provide its organizational
documents and evidence of due legal authorization of the conveyance
and/or this DA to Title Company, and shall complete, execute and return to
Title Company the typical owner’s statement/affidavit required by the
Title Company).
Prior to and as a condition of closing, Developer has delivered copies of the
following soils and environmental reports to City which cover/include the
City Site: Geotechnical investigations soil borings and laboratory analysis,
within the areas of the structures to better define the severity of liquefaction,
settlement, and expansiveness conditions. Prior to and as a condition of
closing, Developer shall obtain, at Developer’s cost, letters from the
preparers of such reports that permit the City to rely on such reports, and
such letters must be in form and substance reasonably acceptable to the
City Manager.
The closing of the conveyance of the City Site is conditioned upon: (i) the
Title Company irrevocably committing in writing to issue a CLTA owner’s
policy of title insurance in an amount equivalent to the Fair Market Value of
the property to be determined by an appraisal by a reputable Appraiser to
be selected by the City in its sole discretion insuring City as owner of the
City Site subject only to the Permitted Exceptions; (ii) Developer and City
agreeing upon (and executing and recording against the City Site and
Project) an REA/CC&R document which reasonably integrates and
coordinates access, landscaping, utilities and the like for both the City Site
(and possible development thereon) and the Project; (iii) Developer’s
completion, and City’s inspection and approval/acceptance, of the City Site
Improvements (defined below); however, Developer shall not be obligated
to install/construct the City Site Improvements until “Final Approval” has
occurred.
For the purposes of this Agreement, “Final Approval” means when all of the
following have occurred: (i) the City shall have approved the Project
Approval and this Agreement; and (ii) the time periods for filing any appeal
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from or legal challenge to the Project Approvals and this Agreement shall
have expired without an appeal or legal challenge (including, without
limitation, any CEQA challenge) having been filed; or, if an appeal or other
legal challenge shall have been filed, all such appeals or legal challenges
shall have been subsequently terminated with the approval of the Project
Approvals and this Agreement upheld, and the time period(s) for filing any
appeal(s) from the upheld decision(s) shall have expired without further
appeals having been filed.
Except for model homes, City shall not be obligated to provide final
inspection approval for vertical construction of residential units to Developer
until the City Site Improvements shall have been substantially completed
and the Developer shall have offered to convey the City Site to the City.
The term “City Site Improvements” means the following:
(1)Rough graded lot to “blue top” condition in accordance with
the grading plans to be obtained for the City Site, and such
improvements shall be certified by a civil engineer licensed
in good standing in California with respect to elevation with
an elevation tolerance to one-tenth (.1) foot accuracy
vertically, with all utilities to be constructed and stubbed to
(but not within) the boundary of the City Site as provided in
the City-approved Improvement Plans, including sewer
service, water service, electrical service, CATV, telephone,
gas and storm drain connections if applicable. Delivery of lot
will include certifications prepared by the licensed Civil
engineer of record certifying that the lots were rough graded
in accordance with the approved rough grading plans (to the
tolerance as described above) and by the Geotechnical
engineer of record with respect to the relative compaction.
(2)Detention basins included in the City Site shall be designed
in accordance with the Building Codes and shall be
consistent with City’s engineering design criteria for storm
drain inlet/outlet piping and Ventura County Watershed
detention basin hydraulic design standards.
(3)The passive park will be delivered per approved landscape
and improvement plans as reviewed and approved by the
City Engineer.
(4)Grading shall incorporate all requirements from a
geotechnical soils report including seismic and potential
liquefaction issues so that no over-excavation of the City Site
will be needed when one or more buildings are constructed
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on the City Site for the planned multi-family residential
project;
(5) All City Site Improvements shall be in compliance with all
City standards and policies and workmanlike manner to the
satisfaction of the City Engineer and Community
Development Director
(6) Developer will assign to City all warranties, indemnities and
insurance policies obtained by Developer from all
contractors performing construction activities at the City Site
on behalf of Developer. In addition, Developer shall defend,
indemnify and hold City harmless from and against all
claims, liabilities, losses, damages, costs and expenses
based upon any negligent or intentional act or omission of
Developer, its officers, agents, employees, subcontractors
and independent contractors, for property damage, bodily
injury, or death, to the extent relating to or connected with
the Property or to the extent arising from the activities
contemplated under this Development Agreement, save and
except claims for damages arising through the gross
negligence or willful misconduct of City.
The closing of the conveyance of the City Site shall be accomplished by:
(i) the City delivering to the Title Company a Certificate of Acceptance,
executed by the City Manager and acknowledged (for the Developer’s grant
deed) together with a Preliminary Change of Ownership Report executed
by the City Manager; and (ii) the Developer delivering to the Title Company
a grant deed for the City Site duly executed and acknowledged. Each party
may deliver recording instructions to the Title Company consistent with this
Agreement in order to effectuate the closing of the conveyance of the City
Site to the City.
Assessments (if any) for the City Site shall be prorated as of the date of
closing. Property taxes shall not be prorated because the City is exempt
from property taxes; Developer shall pay the property taxes for the six -
month property tax billing period in which closing occurs, a nd City will
cooperate in good faith with Developer in connection with Developer’s claim
for a refund of property taxes paid by Developer which are allocable to the
City’s period of ownership.
6.16 Notification of Planned Affordable Housing Site. Prior to issuance of the
first building permit for a residential dwelling unit in the Project, Developer
shall post two (2) signs on the City Site to inform the general public and
potential buyers of the Completed Units in the Project that the City Site as
a multi-family residential project for low and very low income households
is planned. The locations, size, material and wording of the signs shall be
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approved by the City Attorney and Community Development Director.
Developer shall maintain the signs in good condition until thirty (30) days
after the sale of the last Completed Unit of the Project. The City will
become responsible for the signs thereafter.
6.17 Annual Review Procedures. Developer agrees to comply with
Section 15.40.150 of the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual review of this Agreement
and further agrees that the annual review shall include evaluation of its
compliance with the approved EIR and MMRP. The date for Developer’s
submittal of Developer’s application for an annual review, and/or the
deadline for City’s annual review of this Agreement, may be extended by
mutual agreement of the Parties. Failure of City to perform the annual
review shall not affect the validity or enforceability of this Agreement. City
shall deliver to Developer by electronic mail a copy of all staff reports and
documents to be used or relied upon in conducting the annual review and,
to the extent practical, related exhibits concerning Developer’s
performance hereunder, at least ten (10) days prior to any such annual
review by the City Council. Developer shall be permitted during the
annual review to respond orally or by a written statement, or both, to City’s
evaluation of Developer’s performance. The annual review shall be
limited in scope to substantial compliance with the terms of this
Agreement.
6.18 Eminent Domain. If Developer is not successful in acquiring by negotiated
agreement the subject property interests needed for the off-site
improvements, Developer may request in writing that the City acquire said
subject property interests by eminent domain in accordance with
Government Code Section 66462.5 . In such case, City and Developer
will enter into an agreement pursuant to Government Code Section
66462.5 that sets forth the obligations of Developer to pay for all
acquisition-related costs, including but not limited to, the just
compensation for the subject property interests, attorneys’ fees, appraisal
fees, engineering fees, costs for preliminary title reports and related title
documents, City staff costs, and all out of pocket costs in connection with
said acquisitions. The Parties agree and acknowledge that the City will
comply with the Relocation Assistance Act, Government Code Sections
7260 et seq., and the Eminent Domain Law (Code of Civil Procedure
Section 1230.010 et seq.), and their implementing regulations (“Public
Land Acquisition Statutes”), in acquiring the subject property interests.
The Parties recognize that City cannot exercise its power of eminent
domain until the City has satisfied all legally required preconditions under
the Public Land Acquisition Statutes, including the adoption of a
Resolution of Necessity by the City Council in accordance with applicable
law. The City Council has the sole and exclusive discretion to determine
whether to adopt Resolution(s) of Necessity after the required notices and
hearing. If the City Council, in its sole discretion, adopts any such
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Resolution(s) of Necessity, the City Council will exercise exclusive control
of the acquisitions and any eminent domain proceedings. This provision is
neither a commitment nor an announcement of an intent by the City to
acquire any or all of the subject property interests needed for the off-site
improvements. If the City fails or refuses to acquire the respective off-site
property interests as provided above, the provisions of Govt. Code Sec.
66462.5(b) shall apply but only with respect to the portion of the property
that is not acquired and not to the entirety of any infrastructure or facility.
6.19 Subdivision Improvement Agreement. Prior to the submittal of an
application for any subdivision, or any other development project or
entitlement application, Developer shall submit and gain approval from
City Council a Subdivision Improvement Agreement (SIA) to guarantee the
Developer agreements contained in this Agreement and in the conditions
of approval for the VTTM and RPD. The SIA shall address the entities
responsible and method and timing of guarantee for each component of
Developer’s obligations and is subject to City approval at its sole
discretion.
6.20 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for the Project shall be made without
reservation, and Developer expressly waives the right to payment of any
such fees under protest pursuant to California Government Code
Section 66020 and statutes amendatory or supplementary thereto.
Developer further agrees that the fees it has agreed to pay pursuant to
Subsections 6.4, 6.6, 6.7, 6.8 and 6.9 of this Agreement are not public
improvement fees collected pursuant to Government Code Section 66006
and statutes amendatory or supplementary thereto.
6.21 CPI Indexes. In the event the “CPI” referred to in Subsections 6.4, 6.6,
6.7, 6.8 and 6.9 is discontinued or revised, a successor index with which
the “CPI” is replaced shall be used in order to obtain substantially the
same result as would otherwise have been obtained if the “CPI” Index
had not been discontinued or revised.
6.22 City Ability to Modify. Developer acknowledges the City’s ability to modify
the development standards and to change the General Plan designation
and zoning of the Property upon the termination or expiration of this
Agreement (if the Project has not been built), and Developer hereby
waives any rights they might otherwise have to seek judicial review of
such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of
permitted development to that in existence prior to the approval of GPA
No. 2020-__ and ZC No. 2019-__.
6.23 Homeowners Association. Prior to recordation of the first final map for the
Property, Developer may form one or more property owner associations to
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assume ownership and maintenance of private recreation, private streets,
parking lots, landscape areas, flood control and NPDES facilities and
other amenities within the Project. The obligation of said Homeowners
Associations shall be more specifically defined in the conditions of
approval of the first tentative tract or parcel map for the property.
6.24 Public Street Right-of-Ways. Within twelve (12) months after the date of
issuance of the first grading permit issued with respect to the Project ,
Developer shall provide City an irrevocable offer of dedication for each of
the public street rights-of-way, at no cost to City, for the future public
streets within the Property, as conceptually shown in Exhibit H (the “Public
Street Right-of-Ways”).
7.City Agreements.
7.1 Commitment of Resources. At Developer’s expense, City shall commit
reasonable time and resources of City staff to work with Developer on the
processing of applications for Project Approvals and all Subsequent
Approvals and Building Permits for the Project area and if requested in
writing by Developer shall use overtime and independent contractors
whenever possible.
7.2 Easement and Fee Title Acquisitions. If requested in writing by Developer
and limited to City’s legal authority, City at its sole and absolu te discretion
shall proceed to acquire, at Developer’s sole cost and expense,
easements or fee title to land in which Developer does not have title or
interest in order to allow construction of public improvements required of
Developer including any land which is outside City’s legal boundaries.
The process shall generally follow Government Code Section 66462.5 et
seq. and shall include the obligation of Developer to enter into an
agreement with City, guaranteed by cash deposits and other security as
the City may require, to pay all City costs including but not limited to,
acquisition of the interest, attorney fees, appraisal fees, engineering fees,
City staff costs, and City overhead expenses of 15% on all out-of-pocket
costs.
7.3 Concurrent Entitlement Processing. City agrees that whenever possible
as determined by City in its sole discretion to process concurrently all land
use entitlements for the Project so long as the application for such
entitlements are “deemed complete” in compliance with the requireme nts
of Chapter 4.5 Review and approval of Development Projects (Permit
Streamlining Act) of the California Government Code.
7.4 Park Fees. City agrees that the Park Fee required under Subsection 6.8
of this Agreement meets all of Developer’s obligations under applicable
law for park land dedication.
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7.5 Reimbursements from other Developments. City shall facilitate the
reimbursement to Developer of any costs incurred by Developer that may
be subject to partial reimbursement from other developers as a condition
of approval of a tract map, development permit or development agreement
with one or more other developers and at City’s discretion may include
provisions requiring such reimbursement to Developer for the same in
such other development project conditions of approval.
7.6 Early Grading Agreement. The City Manager is authorized to sign an
early grading agreement on behalf of the City to allow Developer to
commence rough grading of the Project prior to City Council approval of a
final subdivision map. Said early grading agreement shall be consistent
with the conditions of the Project TTM and contingent on City Engineer
and Director of Community Development acceptance of a performance
bond in a form and amount satisfactory to them to guarantee
implementation of the erosion control plan and completion of the rough
grading; construction of on-site and off-site improvements consistent with
the City Council approved Project and the TTM. In the case of failure to
comply with the terms and conditions of the early g rading agreement, the
City Council may by resolution declare the surety forfeited.
8.Supersession of Agreement by Change of Law. In the event that any state or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision
of the Agreement, such provision shall be deemed modified or suspended to
comply with such state or federal law or regulation, as reasonably determined
necessary by City.
9.Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be
reviewed annually in accordance with Moorpark Municipal Code Chapter
15.40.150 of City or any successor thereof then in effect. The failure of City to
conduct any such annual review shall not, in any manner, constitute a breach of
this Agreement by City, diminish, impede, or abrogate the obligations of
Developer hereunder or render this Agreement invalid or void. At the same time
as the referenced annual review, City shall also review Developer’s compliance
with the MMRP.
10.Authorized Delays. Performance by any Party of its obligations hereunder, other
than payment of fees, shall be excused during any period of “Excusable Delay”,
as hereinafter defined, provided that the Party claiming the delay gives written
notice of the delay to the other Parties as soon as possible after the same has
been ascertained. For purposes hereof, Excusable Delay shall mean delay that
directly affects, and is beyond the reasonable control of, the Party claiming the
delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot;
(d)strike, picketing or other labor dispute; (e) shortage of materials or supplies;
(f)damage to work in progress by reason of fire, flood, earthquake or other
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casualty; (g) failure, delay or inability of City or other local government entity to
provide adequate levels of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water to serve any portion
of the Property due to drought; (h) delay caused by a delay by other third party
entities which are required to approve plans or documents for Developer to
construct the Project, or restrictions imposed or mandate d by such other third
party entities or governmental entities other than City, (including but not limited
to, Ventura County Watershed Protection District); (i) litigation brought by a third
party attacking the validity of this Agreement, a Project Approva l, a Subsequent
Approval or any other action necessary for development of the Project;
(j) government-mandated “shelter in place”, “lockdown”, “stay home” or similar
orders and/or quarantines required by governmental authorities having
jurisdiction over the Property that restrict the ability of the City or Developer to
perform its respective obligations under this Agreement.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached
this Agreement if it:
(a) practices, or attempts to practice, any fraud or deceit upon City; or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer; or
(b) fails to make any payments required under this Agreement within
five (5) business days after City gives written notice to Developer
that the same is due and payable; or
(c) breaches any of the other provisions of this Agreement and fails to
cure the same within thirty (30) days after City gives written notice
to Developer of such breach (or, if the breach is not able to be
cured within such thirty (30) day period, Developer fails to start to
cure the same within thirty (30) days after delivery of written notice
by City of such breach or fails to thereafter diligently prosecute the
cure to completion).
11.2 Default by City. City shall be in breach of this Agreement if it breaches
any of the provisions of this Agreement and fails to cure the breach within
thirty (30) days after Developer gives written notice to City of the breach
(or, if the breach is not able to be cured within such thirty (30) day period,
City fails to start to cure the same within thirty (30) days after delivery of
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written notice from Developer of such breach or fails to thereafter diligently
prosecute the cure to completion).
11.3 Content of Notice of Violation. Every notice of breach shall state with
specificity that it is given pursuant to this section of this Agreement, the
nature of the alleged breach, and the manner in which the breach may be
satisfactorily cured. Every notice shall state the applicable period to cure.
The notices shall be given in accordance with Section 20 hereof.
11.4 Remedies for Breach. The Parties acknowledge that remedies at law,
including without limitation money damages, would be inadequate for
breach of this Agreement by any Party due to the size, nature and scope
of the Project. The Parties also acknowledge that it would not be feasible
of possible to restore the Property to its natural condition once
implementation of the Agreement has begun. Therefore, the Parties
agree that the remedies for breach of this Agreement shall be limited to
the remedies expressly set forth in this subsection.
The remedies for breach of the Agreement by the City shall be injunctive
relief and/or specific performance. Developer shall not be entitled to
monetary damages or consequential damages for the City’s breach. In
addition, in the event this Agreement is terminated by City pursuant to the
provisions of Chapter 15.40 of the Moorpark Municipal Code, and such
termination is found invalid or unenforceable by a court of competent
jurisdiction, Developer shall not be entitled to monetary damages for the
termination or consequential damages incurred that are the result of the
termination.
In addition, and notwithstanding any other provision of this Agreement, if
the breach is to Subsection 6.13, 6.14 or 6.24, City shall have the right to
withhold the issuance of building permits from the date that the notice of
violation was given pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of violation.
Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against Developer if it violates any City
ordinance or State statute.
12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this Agreement,
including without limitation Section 3.3 above, shall not prevent or limit
Developer, in any manner, at Developer’s sole discretion, from
encumbering the Property or any portion thereof or any improvements
thereon then owned by such person with any mortgage, deed of trust or
other security device (“Mortgage”) securing financing with respect to the
Property or such portion. Any mortgagee or trust deed beneficiary of the
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Property or any portion thereof or any improvements thereon and its
successors and assigns (“Mortgagee”) shall be entitled to the following
rights and privileges.
12.2 Lender Requested Modification/Interpretation. City acknowledges that the
lenders providing financing to Developer for the Property may request
certain interpretations and modifications of this Agreement. City therefore
agrees upon request, from time to time, to meet with Developer and
representatives of such lenders to discuss in good faith any such request
for interpretation or modification. The City will not unreasonably withhold
its consent to any such requested interpretation or modification provided
such interpretation or modification is consistent with the intent and
purposes of this Agreement, provided, further, that any modifications of
this Agreement shall be subject to the provisions of this Agreement
pertaining to modifications and amendments.
12.3 Mortgage Protection. This Agreement shall be superior and senior to the
lien of any Mortgage. Notwithstanding the foregoing, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any
binding and effective against the Mortgagee and every owner of the
Property, or part thereof, whose title thereto is acquired by foreclosure,
trustee sale or otherwise; provided, however, Mortgagee and such owner
shall not be responsible for any matters that occurred prior to their
acquisition of the Property or such portion. Notwithstanding any term or
provision in this Agreement to the contrary, including without limitation
Section 3.3 above, no Mortgagee shall be obligated under this Agreement
to construct or complete improvements or to guarantee such construction
or completion, but shall otherwise be bound by all of the terms and
conditions of this Agreement which pertain to the Project site or such
portion thereof in which it holds an interest.
12.4 Written Notice of Default. If a non-monetary default is not cured by
Developer within thirty (30) days after written notice by City to Developer
or a monetary default is not cured with in five (5) days after written notice
by City to Developer, then each Mortgagee shall be entitled to received
written notice from City of the applicable default by Developer under this
Agreement provided the Mortgagee has delivered a written request to the
City for such notice and shall have provided its address for notices in
writing to the City. Each such Mortgagee shall have a further right, but not
the obligation, to cure such default for an additional period of thirty
(30) days after delivery of such notice of default by City to the Mortgagee,
or to commence to cure or remedy such default to the extent not subject to
full cure within such time period and to proceed diligently thereafter to
cure, provided that such full cure occurs no later than one hundred twenty
(120) days after delivery of such notice of default by City to the
Mortgagee. City shall not commence legal action against Developer by
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reason of Developer’s breach without allowing the Mortgagee to cure the
same as specified herein.
13.Estoppel Certificate. At any time and from time to time, Developer or Mortgagee
may deliver written notice to City and City may deliver written notice to Developer
requesting that such Party certify in writing that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and a binding obligation of the
Parties, (ii) this Agreement has not been amended, or if amended, the identity of
each amendment, and (iii) the requesting Party or Developer is not in breach of
this Agreement, or if in breach, a description of each such breach. The Party
receiving such a request shall execute and return the certificate within ten
(10)days following receipt of the notice. City acknowledges that a certificate
may be relied upon by successors in interest to the Developer who requested the
certificate and by holders of record of deeds of trust on the portion of the
Property in which that Developer has a legal interest.
14.Administration of Agreement. Any consent or approval herein to be given by the
City may be given by the City Manager provided it is expressed and is in writing.
Any decision by City staff concerning the interpretation and administration of this
Agreement and development of the Property in accordance herewith may be
appealed by the Developer to the City Council, provided that any such appeal
shall be filed with the City Clerk of City within thirty (30) days after the affected
Developer receives written notice of the staff decision. The City Council shall
render its decision to affirm, reverse or modify the staff decision within thirty
(30)days after the appeal was filed. The Developer shall not seek judicial review
of any staff decision without first having exhausted its remedies pursuant to this
section.
15.Amendment or Termination by Mutual Consent. In accordance with the
provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect, this Agreement may be amended or terminated,
in whole or in part, by mutual consent of City and the affected Developer.
15.1 Exemption for Amendments of Project Approvals. No amendment to a
Project Approval or Subsequent Approvals shall require an amendment to
this Agreement and any such amendment shall be deemed to be
incorporated into this Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent with this Agreement
and does not alter the permitted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the
Project Approvals or Subsequent Approvals.
16.Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and agents
from and against any and all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting from,
Developer’s performance pursuant to this Agreement, including, but not limited
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to, Developer’s construction of the Project, Developer’s construction of
improvements on the City’s Site, and any injury sustained by any person in
connection with the construction or partial construction of buildings and
improvements on the Property or to the extent arising from the activities
contemplated under this Development Agreement, save and except claims for
damages arising through the gross negligence or willful misconduct of City.
Developer shall indemnify, defend with counsel approved by City, and hold
harmless City and its officers, employees and agents from and against any action
or proceeding to attack, review, set aside, void or annul this Agreement, or any
provision thereof, the environmental documents prepared and approved in
connection with the approval of the Project, or any Project Approval or Subsequent
Approval or modifications thereto, or any other subsequent entitlements for the
project and including any related environmental approval.
17.Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
18.Operative Date. As described in Subsection 1.9 above, this Agreement shall
become operative on the Operative Date, being the date the Enabling Ordinance
becomes effective pursuant to Government Code Section 36937.
19.Term. This Agreement shall remain in full force and effect for a term of twenty
(20)years commencing on the Operative Date or until one year after the
issuance of the final building permit for occupancy of the last unit of the Project
(the “Final Building Permit”), whichever occurs first, unless said term (the “Term”)
is amended or the Agreement is sooner terminated as otherwise provided herein.
Expiration of the Term or earlier termination of this Agreement shall not
automatically affect any Project Approval or Subsequent Approval or Building
Permit or Final Building Permit that has been granted or any right or obligation
arising independently from such Project Approval or Subsequent Approval or
Building Permit or Final Building Permit.
Upon expiration of the Term or earlier termination of this Agreement, th e Parties
shall execute any document reasonably requested by any Party to remove this
Agreement from the public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
Notwithstanding the foregoing, the following shall survive the expiration or earlier
termination of this Agreement: (i) all obligations arising under this Agreement prior
to the expiration or earlier termination of this Agreement; and (ii) Section 16of this
Agreement.
20.Notices. All notices and other communications given pursuant to this Agreement
shall be in writing and shall be deemed received when personally delivered or
upon the third (3rd) day after deposit in the United States mail, registered or
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certified, postage prepaid, return receipt requested, to the Parties at the
addresses set forth in Exhibit “F” attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to the other, designate a
different address which shall be substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and documents
referenced herein contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of
any other provision, whether or not similar; nor shall any such waiver constitute a
continuing or subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized representative of the
Party against whom enforcement of the waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as
an agent of any of the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be construed as creating
the relationship of partners, joint ventures or any other association of any kind or
nature between City and Developer, jointly or severally.
25. No Third-Party Beneficiaries. This Agreement is made and entered into for the
sole benefit of the Parties and their successors in interest. No other person shall
have any right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the County of
Ventura by the City Clerk of City within the period required by Chapter 15.40.140
of the Moorpark Municipal Code of City or any successor thereof then in effect.
27. Cooperation Between City and Developer. City and Developer shall execute and
deliver to the other all such other and further instruments and documents as may
be necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the various sections and
subsections of this Agreement are for convenience of reference only, and they
shall not constitute a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this Agreement be
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found to be in conflict with any provision of the Purchase and Sale Agreement,
the Project Approvals or the Subsequent Approvals, the provision of this
Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have been prepared
jointly and equally by the Parties, and it shall not be construed against any Party
on the ground that the Party prepared the Agreement or caused it to be
prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed
in the County of Ventura, California, and the laws of the State of California shall
govern its interpretation and enforcement. Any action, suit or proceeding related
to, or arising from, this Agreement shall be filed in the appropriate court having
jurisdiction in the County of Ventura.
31. Attorneys’ Fees. In the event any action, suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to, or as a result of
any alleged breach of, this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys’ fees and litigation expenses and costs, and any judgment,
order or decree rendered in such action, suit or proceeding shall include an
award thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which constitute one and the
same instrument.
33. Authority to Execute. Developer warrants and represents that to its knowledge
as of the Operative Date and with respect to each entity that is defined as
Developer: (i) it is duly organized and existing; (ii) it is duly authorized to execute
and deliver this Agreement; (iii) by so executing this Agreement, Developer is
formally bound to the provisions of this Agreement; (iv) Developer’s entering into
and performance of its obligations set forth in this Agreement do not violate any
provision of any other agreement to which Developer is bound; and (v) there is
no existing or threatened litigation or legal proceeding of which Developer is
aware that could prevent Developer from entering into or performing its
obligations set forth in this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Development Agreement
effective as of the Operative Date.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
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RWC HITCH RANCH, LLC,
a California limited liability company
By:
Robert Comstock,
RWC Hitch Ranch, Authorized signer
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EXHIBIT “A”
LEGAL DESCRIPTION
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EXHIBIT “B”
REGIONAL ROADS EXHIBIT
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EXHIBIT “C”
ARROYO VISTA PARK IMPROVEMENT LOCATION
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EXHIBIT “D”
ROADWAY, PARK, AND LANDSCAPE MAINTENANCE AREA LOCATIONS
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EXHIBIT “E”
CITY SITE LOCATION
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EXHIBIT “F”
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
RWC Hitch Ranch, LLC
2301 Rosecrans Ave., Ste 1150
El Segundo, CA 90245
Attn: Robert Comstock/Nicholas Long
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EXHIBIT “G”
RESERVED
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EXHIBIT “H”
PUBLIC STREET RIGHT-OF-WAYS LOCATION
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SCHEDULE 6.14(h)
AFFORDABLE HOUSING UNITS MINIMUM REQUIREMENTS
One-bedroom Affordable Housing Units shall include one bedroom and one bath, shall
include at least 450 square feet of living space, and shall be no more than 45% of the
total number of Affordable Housing Units.
Two bedroom Affordable Housing Units shall include two bedrooms and one bath, shall
include at least 700 square feet of living space, and shall be no less than 25% of the
total number of Affordable Housing Units.
Three-bedroom Affordable Housing Units shall include three bedrooms and two baths,
shall include at least 900 square feet of living space, and shall be no less than 25% of
the total number of Affordable Housing Units.
The foregoing requirements are subject to the requirements of any governmental
agency to which the project is subject to approval, however
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