HomeMy WebLinkAboutAGENDA REPORT 2022 0907 CCSA REG ITEM 11ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of September 7, 2022
ACTION ADOPTED ORDINANCE NO.
505. (ROLL CALL VOTE: 4-0,
COUNCILMEMBER POLLOCK ABSENT)
BY A. Hurtado.
A. Consider Ordinance No. 505 Approving General Plan Amendment No. 2021-01,
Development Agreement No. 2021-01, and Zone Change No. 2021-01 including a
General Plan Amendment Land Use Designation Change from Park and Low
Density Residential to High Density Residential, and a Zone Change From Single-
Family Residential and Rural Exclusive To Residential Planned Development, for
the Subdivision and Development of 47 Residential Units, Private Roads,
Community Open Space, and Associated Improvements on 7.4 Acres of Property,
Located at 11930 Los Angeles Avenue (Beltramo Ranch Road) on the Application
of Joe Oftelie on behalf of Warmington Residential. Staff Recommendation: Waive
full reading, declare Ordinance No. 505 read for the second time, and adopted as
read. (ROLL CALL VOTE REQUIRED)
Item: 11.A.
Item: 11.A.
ORDINANCE NO. 505
AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA,
APPROVING GENERAL PLAN AMENDMENT NO. 2021-01,
DEVELOPMENT AGREEMENT NO. 2021-01, AND ZONE CHANGE NO.
2021-01 INCLUDING A GENERAL PLAN AMENDMENT LAND USE
DESIGNATION CHANGE FROM PARK AND LOW DENSITY
RESIDENTIAL TO HIGH DENSITY RESIDENTIAL, AND A ZONE
CHANGE FROM SINGLE-FAMILY RESIDENTIAL AND RURAL
EXCLUSIVE TO RESIDENTIAL PLANNED DEVELOPMENT, FOR THE
SUBDIVISION AND DEVELOPMENT OF 47 RESIDENTIAL UNITS,
PRIVATE ROADS, COMMUNITY OPEN SPACE, AND ASSOCIATED
IMPROVEMENTS ON 7.4 ACRES OF PROPERTY, LOCATED AT 11930
LOS ANGELES AVENUE (BELTRAMO RANCH ROAD) ON THE
APPLICATION OF JOE OFTELIE ON BEHALF OF WARMINGTON
RESIDENTIAL
WHEREAS, on June 4, 2021, Warmington Residential (Applicant) submitted a
development application for General Plan Amendment (GPA), Development Agreement
(DA), Zone Change (ZCH), Vesting Tentative Tract Map (VTTM), and Residential
Planned Development (RPD) for the subdivision of land and development of 47 detached
single-family residential units, private roads, community open space, and associated
improvements (Project, Proposed Project). The Project includes an application for a GPA
land use designation change for a portion of the 7.4 acres of land from Park (P) and Low
Density Residential (L) to High Density Residential (H), as well as a ZCH from Single-
Family Residential (R-1) and Rural Exclusive (RE-20) to Residential Planned
Development (RPD-7U). The request also includes a VTTM to subdivide the property
into eight common area parcels and 47 residential condominium parcels. The Project
Site includes 7.4 acres, located at 11930 Los Angeles Avenue (Assessor’s Parcel
Numbers [APNs] 504-0-021-195, 506-0-030-210, 506-0-030-220, 506-0-030-235, 506-0-
030-045, and 506-0-030-055 (Project Site, Site); and
WHEREAS, on May 13, 2022, the City of Moorpark Community Development
Department published, pursuant to the California Environmental Quality Act (CEQA), a
Notice of Intent to Adopt a Mitigated Negative Declaration (MND) for the Beltramo Ranch
Project (State Clearinghouse Number 2022050309) analyzing the Project’s potential
impacts on the environment and accepted public comments in accordance with CEQA
Guidelines Section 15105 for a period of 30 days between May 13, 2022, and June 13,
2022; and
WHEREAS, the City prepared written responses to all comments received on the
Draft MND and those responses to comments are incorporated into the Final MND; and
WHEREAS, at a duly noticed public hearing on June 28, 2022, the Planning
Commission considered the Final MND 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
reached a decision on this matter, adopting Resolution No. PC-2022-673 recommending
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Ordinance No. 505
Page 2
that the City Council adopt the Final MND and approve the Project, with Conditions as
amended; and
WHEREAS, at a duly noticed public hearing on July 20, 2022, the City Council
considered the Final MND 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. 2022-4117 adopting the Final MND pursuant to the California
Environmental Quality Act including a Mitigation Monitoring and Reporting Program, and
approving General Plan Amendment, Development Agreement, Zone Change, Vesting
Tentative Tract Map, and Residential Planned Development 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 MND and upon other substantial evidence that
has been presented at the hearings and in the record of the proceedings. The Final MND,
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 MND
and Project.
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 MND 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. 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. 2022-4117.
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Ordinance No. 505
Page 3
SECTION 5. GENERAL PLAN AMENDMENT FINDINGS: 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 MND and appendices, and oral
and written public testimony, including but not limited to the General Plan Consistency
Analysis provided in Section 4.11 (Land Use) of the Final MND incorporated by reference.
SECTION 6. ZONE CHANGE FINDINGS: Based upon the information set forth in
the agenda report(s), accompanying studies, the Project Final MND and appendices, and
oral and written public testimony, the City Council finds that the proposed zone change
depicted in Exhibit B is consistent with the proposed General Plan land use designation
and existing General Plan, including the Housing Element, as outlined in Section 4.11 of
the Final MND.
SECTION 7. DEVELOPMENT AGREEMENT FINDINGS: Based upon the
information set forth in the staff report(s), accompanying studies, the Project Final MND
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:
A. The provisions of the development agreement as depicted in Exhibit C 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,
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 C 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 8. CITY COUNCIL APPROVAL – The City Council does hereby ordain
as follows:
A. GENERAL PLAN 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 General Plan Amendment No. 2021-01 as
depicted in Exhibit A which amends the General Plan Land Use Map to reflect
the designations included in Exhibit A;
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Ordinance No. 505
Page 4
B. 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. 2021-01 as
depicted in Exhibit B which amends the Zoning Map to reflect the designations
included in Exhibit B;
C. 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. 2021-01 as
depicted in Exhibit C.
SECTION 9. 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 10. 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.
SECTION 11. 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 7th of September, 2022.
__________________________________
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Attachments:
Exhibit A: General Plan Amendment Map
Exhibit B: Zone Change Map
Exhibit C: Development Agreement
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Existing Proposed
High Density Residential (7 DU/AC)
Low Density Residential (1 DU/AC)
Park (P)General Plan Land Use Designation Map
Ordinance No. 505
Page 5 EXHIBIT A
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Existing Proposed
Single Family Residential (R-1)
Rural Exclusive (RE-20)
Residential Planned Development (RPD-7)Zoning Designation Map
EXHIBIT BOrdinance No. 505
Page 6
1111
Ordinance No. ___
Page 7
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
WARMINGTON RESIDENTIAL CALIFORNIA, INC.
EXHIBIT C
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Page 8
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 WARMINGTON
RESIDENTIAL CALIFORNIA, INC., a California corporation, the owners of a
legal or equitable interest with respect to certain real property within the City of
Moorpark generally referred to as “Beltramo Ranch” and Residential Planned
Development Permit 2021-01 (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 Developer holds 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 Beltramo
Ranch, referred to hereinafter as the “Property”.
1.3 Prior to, and in connection with, the approval of this Agreement, the
City Council reviewed the project to be developed pursuant to this
Agreement as required by the California Environmental Quality Act
(“CEQA.”) On July 20, 2022, the City Council adopted Resolution
No. 2022-4117, adopting the Mitigated Negative Declaration
(“MND”) prepared for this Agreement and the Project Approvals as
defined in Subsection 1.4 of this Agreement.
1.4 General Plan Amendment (GPA) No. 2021-01, Zone Change (ZCH)
No. 2021-01, Residential Planned Development (RPD) Permit No.
2021-01, Vesting Tentative Tract Map (VTTM) No. 2021-01
including all subsequently approved modifications and permit
adjustments to the RPD Permit, VTTM, and all amendments thereto
(collectively the “Project Approvals"; individually a “Project
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Approval") provide for the development of the Property with 47
single-family residential units and the construction of any
improvements in connection therewith (the “Project"), as shown on
the site plan (Exhibit “C”).
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 and subject to the terms and conditions set
forth herein, 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 amended by GPA No. 2021-01.
1.8 On June 28, 2022, the Planning Commission commenced a duly
noticed public hearing on this Agreement, and at the conclusion of
the hearing on June 28, 2022, recommended approval of this
Agreement.
1.9 On July 20, 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. 505 (the
“Enabling Ordinance”) that approves this Agreement. Thereafter on
September 7, 2022, the City Council gave second reading to and
adopted the Enabling Ordinance.
2. Property Subject To This Agreement. All of the Property shall be subject
to this Agreement. The Property may also be referred to hereinafter as "the site."
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3. Binding Effect. The burdens of this Agreement are binding upon, and the
benefits of the Agreement inure to, each Party and each of their respective
assignees and successors 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
assignee and successor in interest thereto.
3.1 Constructive Notice and Acceptance. Every person who acquires
any right, title or interest in or to any portion of the Property shall be
conclusively deemed to have consented and agreed to be bound by
this Agreement, whether or not any reference to the Agreement is
contained in the instrument by which such person acquired such
right, title or interest, subject to Subsection 3.2 below.
3.2 Release Upon Subsequent Transfer. Upon the conveyance of
Developer’s interest in the Property or any portion thereof by
Developer or its successor(s) in interest, the transferor shall be
released from its obligations hereunder with respect to the portion
of Property conveyed as of the effective date of the conveyance,
provided that the transferee expressly assumes all obligations of
the transferred portion of the Property and a copy of the executed
assignment and assumption agreement is delivered to the City prior
to the conveyance. Failure to provide a written assumption
agreement hereunder shall not negate, modify or otherwise affect
the liability of the transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City discretion to
approve or deny any such conveyance. Notwithstanding the
foregoing, this Agreement shall not be binding upon the transferee
of a Completed Unit with respect to the transferee’s interest in such
Completed Unit, and the rights and obligations of Developer under
this Agreement shall not run with the portion of the Property that is
conveyed with the Completed Unit after such conveyance of the
Completed Unit by Developer or its successor in interest. For
purposes of this Agreement, “Completed Unit” means a completed
residential unit within the Property for which the City has issued a
certificate of occupancy.
4. Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property:
4.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project
Approvals and this Agreement.
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4.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum
height and size of buildings, that shall be applicable to the Property
are set forth in the Project Approvals and this Agreement.
4.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit
is approved per Title 15 of the Moorpark Municipal Code and to any
federal or state building requirements that are then in effect
(collectively the “Building Codes").
4.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set
forth in the Project Approvals and this Agreement.
4.5 Phasing. The City and Developer acknowledge that Developer
cannot predict when or in what order the Project will be developed.
Such decisions depend upon numerous factors which are not within
the control of Developer including, but not limited to, market
orientation and demand, interest rates, competition and similar
factors beyond the control of Developer. Except as provided in this
Agreement, Developer shall have the discretion to develop the
Project in phases and in such order as Developer deems
appropriate within the exercise of its subjective and independent
business judgment. Specifically, City and Developer agree that
Developer shall be entitled to apply for and receive permits, maps,
certificates of occupancy and other entitlements to use at any time
that this Agreement is in effect, provided that such actions are in
accordance with the City Laws, this Agreement and the Project
Approvals. Because the California Supreme Court held in Pardee
Construction Co. vs. City of Camarillo, 37 Cal.3d 465 (1984), that
failure of the parties therein to provide for the timing of development
resulted in a later-adopted initiative restricting the timing of
development to prevail over such parties' agreement, the parties
herein intend to cure that deficiency by acknowledging and
providing that Developer shall have the right (without obligation) to
develop the Project in such order and at such rate and at such time
as Developer deems appropriate within the exercise of its
subjective business judgment, subject to the terms of this
Agreement and the Project Approvals.
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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 or any portion thereof in accordance with the terms and
provisions of the Project Approvals and this Agreement. The
Parties intend that this Agreement, together with the Project
Approvals, shall serve as the controlling document for all
subsequent actions, discretionary and ministerial, relating to the
development and occupancy of the Property or any portion thereof,
including, without limitation, all Subsequent Approvals (as defined
below). Developer shall have the right, without obligation, to
develop the Property or any portion thereof in such order and at
such rate and times as Developer deems appropriate within the
exercise of its subjective business judgment.
Except as otherwise provided in Section 5.6, no future amendment
of any existing City ordinance or resolution, or future adoption of
any ordinance, resolution or other action, that purports to limit rate,
timing, density, intensity or configuration of development of the
Property (or any portion thereof) over time or alter the sequencing
of development phases, whether adopted or imposed by the City
Council or through the initiative or referendum process or by any
agency of the City, shall apply to the Property or any portion thereof
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this subsection shall be
construed to limit City's right to ensure that Developer timely
provides all infrastructure required by the Project Approvals,
Subsequent Approvals, and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the
Project Approvals, whether adopted or approved by the City
Council or through the initiative or referendum process, shall apply
to any portion of the Property, unless the Developer has agreed in
writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use
approvals, entitlements and permits, including without limitation
subdivision maps (e.g. tentative, vesting tentative, parcel, vesting
parcel, and final maps), subdivision improvement agreements and
other agreements relating to the Project, lot line adjustments,
preliminary and final planned development permits, use permits,
design review approvals (e.g. site plans, architectural plans and
landscaping plans), encroachment permits, and sewer and water
connections that are necessary to or desirable for the development
of the Project (collectively the “Subsequent Approvals”; individually
a “Subsequent Approval") shall be consistent with the Project
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Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project Approvals
and by the applicable provisions of the Moorpark General Plan, the
Moorpark Municipal Code and other City ordinances, resolutions,
rules, regulations, policies, standards and requirements as most
recently adopted or approved by the City Council, or through the
initiative or referendum process, and in effect at the time that the
application for the Subsequent Approval is deemed complete by
City (collectively "City Laws"), except City Laws that:
(a) change any permitted or conditionally permitted uses of the
Property from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any
part thereof, or otherwise require any reduction in the
number of proposed buildings or other improvements from
what is allowed by the Project Approvals;
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of
the Project in any manner, provided that all infrastructure
required by the Project Approvals to serve the portion of the
Property covered by the Subsequent Approval is in place or
is scheduled to be in place prior to completion of
construction;
(d) are not uniformly applied on a citywide basis to all
substantially similar types of development projects or to all
properties with similar land use designations; or
(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 that prohibits or restricts the establishment
or expansion of urban services including but not limited to
community sewer systems to the Project.
5.4 Modification of Approvals. Throughout the term of this Agreement,
Developer shall have the right, at its election and without risk to or
waiver of any right that is vested in it pursuant to this section, to
apply to City for modifications to Project Approvals and for
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
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with this Agreement and does not alter the permitted uses, density,
intensity, maximum height, size of buildings or reservations and
dedications as contained in the Project Approvals.
5.5 Issuance of Building Permits. No building permit shall be
unreasonably withheld or delayed from Developer if Developer is in
compliance with this Agreement and the Project Approvals and
Subsequent Approvals. In addition, no final building permit, final
inspection or certificate of occupancy will be unreasonably withheld
or delayed from Developer if all infrastructure required by the
Project Approvals, Subsequent Approvals, and this Agreement to
serve the portion of the Property covered by the final building
permit is in place or is scheduled to be in place prior to completion
of construction, the Developer is in compliance with all provisions of
this Agreement, the Project Approvals and Subsequent Approvals,
and all of the other relevant provisions of the Project Approvals,
Subsequent Approvals and this Agreement have been satisfied.
Consistent with Subsection 5.1 of this Agreement, in no event shall
building permits be allocated on any annual numerical basis or on
any arbitrary allocation basis.
5.6 Moratorium on Development. Nothing in this Agreement shall
prevent City, whether by the City Council or through the initiative or
referendum process, from adopting or imposing a moratorium on
the processing and issuance of Subsequent Approvals and building
permits and on the finalizing of building permits by means of a final
inspection or certificate of occupancy, provided that the moratorium
is adopted or imposed (i) on a Citywide basis to all substantially
similar types of development projects and properties with similar
land use designations and (ii) as a result of a utility shortage or a
reasonably foreseeable utility shortage including without limitation a
shortage of water, sewer treatment capacity, electricity or natural
gas.
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) MND and any subsequent or supplemental
environmental actions. Developer agrees not to apply for any non-
residential uses on the Property.
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6.2 Development Fee Per Unit. As a condition of, and immediately
prior to, the issuance of a building permit for each residential
dwelling unit within the Property, Developer shall pay City a one-
time development fee as described herein (the “Development
Fee”). The Development Fee may be expended by City in its sole
and unfettered discretion. The amount of the Development Fee
shall be ten thousand, nine hundred eighty-nine dollars and twenty
cents ($10,989.20) per 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
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.
6.3 Traffic Mitigation Fee. As a condition of the issuance of a building
permit for each residential dwelling unit within the boundaries of the
Property, Developer shall pay City a one-time traffic mitigation fee
as described herein (“Citywide Traffic Fee”). The Citywide Traffic
Fee may be expended by City in its sole and unfettered discretion.
The amount of the Citywide Traffic Fee shall be fourteen thousand,
eight hundred sixty one dollars and ninety four cents ($14,861.94)
per residential unit. The Citywide Traffic Fee shall be adjusted
annually commencing January 1, 2024 and annually thereafter by
the change in the Caltrans Highway Bid Price Index (Bid Price
Index) for Selected California Construction Items for the twelve (12)
month period available on December 31 of the preceding year
(“annual indexing”). In the event there is a decrease in the Bid Price
Index for any annual indexing, the current amount of the fee shall
remain until such time as the next subsequent annual indexing
which results in an increase.
6.4 Los Angeles Avenue Area of Contribution (LAAOC) Fees.
Developer shall pay the LAAOC fee in effect at the time of building
permit issuance for each residential dwelling unit within the
Property.
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6.5 Air Quality Fees. Developer agrees that the Mitigation Measures
included in the City Council approved MND 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.
The Air Quality Fee shall be two thousand, forty-one dollars and
thirty-six cents ($2,041.36) per residential dwelling unit within the
Property to be paid prior to the issuance of a building permit for
each residential dwelling unit in the Project. If the Air Quality Fee is
not paid by January 1, 2024, then commencing on January 1, 2024,
and annually thereafter, the Air Quality Fee shall be adjusted by
any increase in the 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.
6.6 Park Fees. Prior to the issuance of the first building permit for a
residential dwelling unit within the Property, the 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
six hundred ninety-seven thousand, eight hundred sixty-eight
dollars and eighty-seven cents ($697,868.87) within the Property. If
the Park Fee is not paid by January 1, 2024, the Park Fee shall be
adjusted annually commencing January 1, 2024, by the larger
increase of a) or b) as follows:
(a) The change in the CPI. The change shall be determined by
using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the
Los Angeles/Long Beach/Anaheim metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October; or
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(b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index (Bid Price Index) for Selected
California Construction Items for the twelve (12) month period
available on December 31 of the preceding year (annual
indexing).
(c) In the event there is a decrease in both of the referenced
Indices for any annual indexing, the Park Fee shall remain at its
then current amount until such time as the next subsequent
annual indexing which results in an increase as of October of
the next year and each October thereafter.
(d) City and Developer agree that the above-described payments
shall be deemed to satisfy the parkland dedication requirement
set forth in California Government Code Section 66477 et seq.
for the Property.
6.7 Community Services Fee. As a condition of issuance of a building
permit for each residential dwelling unit within the boundaries of the
Project, Developer shall pay City a one-time community services
fee as described herein (“Community Services Fee”). The
Community Services Fees may be expended by City in its sole and
unfettered discretion. The amount of the Community Services Fees
shall be three thousand, two hundred twenty-five dollars and nine
cents ($3,225.09) per residential dwelling unit. Commencing on
January 1, 2024, and annually thereafter, the Community Services
Fee shall be adjusted by any increase in the CPI until all
Community Service Fee have been paid. The CPI increase shall
be determined by using the information provided by the U.S.
Department of Labor, Bureau of Labor Statistics, for All Urban
Consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during this prior year. The calculation shall be
made using the month of October over the prior month of October
or in the event there is a decrease in the CPI for any annual
indexing, the Community Service Fee shall remain at its then
current amount until such time as the next subsequent annual
indexing which results in an increase.
6.8 Art in Public Places Fee. Developer agrees to pay the Art in Public
Places Fee (Art Fee) in effect at the time of building permit
issuance for each building prior to the issuance of the building
permit for that residential building within the Project consistent with
City Resolution No. 2005-2408 or any Successor Resolution (1.0
percent of total building valuations excluding land value and off-site
improvement costs).
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6.9 Other Development and Processing Fees. In addition to fees
specifically mentioned in this Agreement, Developer agrees to pay
all City capital improvement, development, and processing fees at
the rate and amount in effect at the time the fee is required to be
paid. Said fees include but are not limited to Library Facilities Fees,
Police Facilities Fees, Fire Facilities Fees, drainage, entitlement
processing fees, and plan check and permit fees for buildings and
public improvements. Developer further agrees that unless
specifically exempted by this Agreement, it is subject to all fees
imposed by City at the Operative Date of this Agreement (“Existing
Fees”) any new City fees, exactions or charges or increases in
Existing Fees shall only be applicable to the Project if adopted in
compliance with the Mitigation Fee Act, Government Code Section
66000 et. seq. and are applied consistently and proportionately to
the Project.
6.10 Processing Fees. On the Operative Date, Developer shall pay all
outstanding City processing costs related to preparation of this
Agreement, the Project Approvals and the MND.
6.11 Community Facilities District.
(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 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
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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, landscape, and hardscape
maintenance adjacent to Los Angeles Avenue. 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 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.
(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,
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such as the costs of legal counsel, special tax consultants,
engineers, etc. to the extent authorized by the City and the
applicable act.
6.12 Affordable Housing.
(a) The Developer agrees to pay an in lieu fee for the
community benefit of Affordable Housing (“Affordable
Housing Fee”) prior to the issuance of a building permit. The
Affordable Housing Fee may be expended by City in an
effort to further fair housing. The amount of the Affordable
Housing Fee shall be a flat fee of One Million Thirty-Four
Thousand Dollars ($1,034,000.00). If the Affordable
Housing Fee is unpaid as of January 1, 2024, then on such
date and annually thereafter, the Affordable Housing Fee
shall be adjusted by any increase in the CPI until the
Affordable Housing Fee has 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 month of October from the prior year or in the event
there is a decrease in the CPI for any annual indexing, the
Affordable Housing Fee shall remain at its then current
amount until such time as the next subsequent annual
October indexing which results in an increase. By paying
the Affordable Housing Fee, the Developer shall have met its
Affordable Housing obligations.
6.13 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 MND and
MMRP.
6.14 Eminent Domain. Developer agrees that any election to acquire
property by eminent domain shall be at City’s sole discretion, and
only after compliance with all legally required procedures including
but not limited to a hearing on a proposed resolution of necessity.
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6.15 Implementation Plan. Prior to the submittal of an application for
any subdivision, or any other development project or entitlement
application, Developer shall submit and gain approval from City
Council a plan to guarantee the Developer agreements contained in
this Agreement and in the conditions of approval for the VTTM and
RPD. The plan shall address the entities responsible and method
and timing of guarantee for each component of Developer's
obligations and is subject to City approval at its sole discretion.
6.16 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 6.2, 6.8 and 6.12 of this
Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto.
6.17 CPI Indexes. In the event the “CPI” referred to in Subsections 6.2,
6.5, 6.6, 6.7 and 6.12 or the Bid Price Index referred to in
Subsections 6.3 and 6.6 are discontinued or revised, a successor
index with which the “CPI” and or Bid Price Index are replaced shall
be used in order to obtain substantially the same result as would
otherwise have been obtained if either or both the “CPI” and Bid
Price Index had not been discontinued or revised.
6.18 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. 2021-01 and ZCH
No. 2021-01.
6.19 Homeowners Association. Prior to recordation of the first final map
for the Property, if required by City at its sole discretion, Developer
shall form one or more property owner associations to assume
ownership and maintenance of private recreation, private streets,
parking areas, landscape areas, flood control and NPDES facilities
and other amenities within the Project. The obligation of said
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Homeowners Associations shall be more specifically defined in the
conditions of approval of the first tentative tract for the property.
7. City Agreements.
7.1 Commitment of Resources. At Developer’s expense, City shall
commit reasonable time and resources of City staff to work with
Developer on the processing of applications for Project Approvals
and all Subsequent Approvals and Building Permits for the Project
area and if requested in writing by Developer shall use overtime
and independent contractors whenever possible.
7.2 Easement and Fee Title Acquisitions. If requested in writing by
Developer and limited to City’s legal authority, City at its sole and
absolute discretion shall proceed to acquire, at Developer’s sole
cost and expense, easements or fee title to land in which Developer
does not have title or interest in order to allow construction of public
improvements required of Developer including any land which is
outside City's legal boundaries and/or to relocate utilities on or
adjacent to the Project which are reasonably necessary to develop
the Property. 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 plus 15% on all out-of-pocket costs.
7.3 Concurrent Entitlement Processing. City agrees that whenever
possible as determined by City in its reasonable discretion to
process concurrently all land use entitlements for the Project so
long as the application for such entitlements are “deemed
complete” in compliance with the requirements of Chapter 4.5
Review and approval of Development Projects (Permit Streamlining
Act) of the California Government Code.
7.4 Park Fees. City agrees that the Park Fee required under
Subsection 6.6 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 rough
grading of the Project prior to City Council approval of a final
subdivision map. Said early grading agreement shall be consistent
with the conditions of the Project approved tentative map and
contingent on City Engineer and Director of Community
Development acceptance of a performance bond in a form and
amount satisfactory to them to guarantee implementation of the
erosion control plan and completion of the rough grading;
construction of on-site and off-site improvements consistent with
the City Council approved Project and Tentative Map. In the case
of failure to comply with the terms and conditions of the early
grading agreement, the City Council may by resolution declare the
surety forfeited.
8. Supersession of Agreement by Change of Law. In the event that any
state or federal law or regulation enacted after the date the Enabling
Ordinance was adopted by the City Council prevents or precludes
compliance with any provision of the Agreement, such provision shall be
deemed modified or suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by Developer with the provisions of this Agreement, the
Agreement shall be reviewed annually in accordance with Moorpark
Municipal Code Chapter 15.40. of City or any successor thereof then in
effect. The failure of City to conduct any such annual review shall not, in
any manner, constitute a breach of this Agreement by City, diminish,
impede, or abrogate the obligations of Developer hereunder or render this
Agreement invalid or void. At the same time as the referenced annual
review, City shall also review Developer’s compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its obligations
hereunder, other than payment of fees, shall be excused during any
period of "Excusable Delay", as hereinafter defined, provided that the
Party claiming the delay gives written notice of the delay to the other
Parties as soon as possible after the same has been ascertained. For
purposes hereof, Excusable Delay shall mean delay that directly affects, is
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beyond the reasonable control of, and is not the result of any negligence
on the part of the Party claiming the delay, including without limitation: (a)
act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor
dispute; (e) shortage of materials or supplies; (f) damage to work in
progress by reason of fire, flood, earthquake or other casualty; (g) failure,
delay or inability of City or other local government entity to provide
adequate levels of public services, facilities or infrastructure to the
Property including, by way of example only, the lack of water to serve any
portion of the Property due to drought; (h) delay caused by a delay by
other third party entities which are required to approve plans or documents
for Developer to construct the Project, or restrictions imposed or
mandated by such other third party entities or governmental entities other
than City, (including but not limited to, Ventura County Watershed
Protection District); or (i) litigation brought by a third party attacking the
validity of this Agreement, a Project Approval, a Subsequent Approval or
any other action necessary for development of the Project.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have
breached this Agreement if it:
(a) Practices 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
fifteen (15) 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 sixty (60) days after City gives written
notice to Developer of such breach (or, if the breach is not able
to be cured within such sixty (60) day period, Developer fails to
start to cure the same within sixty (60) days after delivery of
written notice by City of such breach or fails to thereafter
diligently prosecute the cure to completion).
(d) Developer also agrees that subsidiaries, divisions or affiliates are
subject to the restrictions of this Agreement.
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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 sixty (60) days after Developer gives written
notice to City of the breach (or, if the breach is not able to be cured
within such sixty (60) day period, City fails to start to cure the same
within sixty (60) days after delivery of 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 Developer’s Failure to Cure Breach.
(a) If after the applicable cure period provided in Section 11.1 has
elapsed, the City Manager finds and determines the Developer,
or its successors, transferees and/or assignees, as the case
may be, remains in default and that the City shall terminate or
modify this Agreement, or those transferred or assigned rights
and obligations, as the case may be, Developer, and its
successors, transferees and/or assigns, shall be entitled to
appeal that finding and determination to the City Council in
accordance with Section 14. Such right of appeal shall include,
but not be limited to, an objection to the manner in which the
City intends to modify this Agreement if the City intends as a
result of a default of the Developer, or one of its successors or
assigns, to modify this Agreement. In the event of a finding and
determination that all defaults are cured, there shall be no
appeal by any person or entity.
(b) Termination or Modification of Agreement. The City may
terminate or modify this Agreement, or those transferred or
assigned rights and obligations, as the case may be, after such
final determination of the City Council as provided in Subsection
11.4 (a) or, where no appeal is taken, after the expiration of the
applicable appeal periods described in Section 14
Notwithstanding any other provision of this Agreement to the
contrary, in the event that: (a) Developer or any of its
successors assigns some, but not all, of its rights under this
Agreement in connection with a sale of some, but not all, of the
Property; and (b) thereafter Developer or one or more of its
successors in interest under this Agreement is in default under
this Agreement and either Developer or one or more of its
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successors in interest under this Agreement is not in default
under this Agreement, then any remedy the City may have the
right to take under this Agreement including the right of
termination or modification of this Agreement shall only apply to
the party(ies) that is (are) in default and the portion(s) of the
Property owned by such party(ies) and shall not apply to
Developer or any successor and/or assignee of Developer
under this Agreement that is not in default hereunder.
11.5 Specific Performance. The Parties acknowledge that remedies at
law, including without limitation money damages, would be
inadequate for breach of this Agreement by any Party due to the
size, nature and scope of the Project. The Parties also
acknowledge that it would not be feasible or possible to restore the
Property to its natural condition once implementation of the
Agreement has begun. The City's remedy to terminate or amend
this Agreement in the event of Developer's uncured breach shall be
sufficient in most circumstances. Notwithstanding the foregoing, if
the City approves a final parcel map or subdivision map, issues a
permit, or issues other approval(s) pursuant to this Agreement in
reliance upon a specified condition or conditions being satisfied by
Developer in the future, and if Develop than fails to satisfy such
condition(s), the City shall be entitled to refuse to issue additional
permits or approvals that Developer would otherwise be entitled
under this Agreement and may seek specific performance for the
sole purpose of causing Developer to satisfy such condition or
conditions. Except in these limited circumstances, the City shall
have no right to seek specific performance to cause Developer to
proceed with the development of the Project in any manner.
11.6 Monetary Damages. Developer and the City acknowledge that
neither the City nor Developer would have entered into this
Agreement if either were liable for monetary damages under or with
respect to this Agreement or the application thereof. Both the City
and Developer agree and recognize that, as a practical matter, it
may not be possible to determine an amount of monetary damages
which would adequately compensate Developer for its investment
of time and financial resources in planning to arrive at the kind,
location, intensity of use, and improvements for the Project, nor to
calculate the consideration the City would require to enter into this
Agreement to justify such exposure. Therefore, the City and
Developer agree that neither shall be liable for monetary damages
under or with respect to this Agreement or the application thereof
and the City and Developer covenant not to sue for or claim any
monetary damages for the breach of any provision of this
Agreement. This foregoing waiver shall not be deemed to apply to
any fees or other monetary amounts specifically required to be paid
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by Developer to the City pursuant to this Agreement, including, but
not limited to, any amounts due pursuant to Section 6, 16 or
Section 31. The foregoing waiver shall also not be deemed to
apply to any fees or other monetary amounts specifically required
to be paid or credited by the City to Developer pursuant to this
Agreement, including, but not limited to any Fee Credits specifically
required to be credited by City to Developer or its assignee(s).
12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this
Agreement shall not prevent or limit Developer, in any manner, at
Developer’s sole discretion, from encumbering the Property or any
portion thereof or any improvements thereon then owned by such
person with any mortgage, deed of trust or other security device
(“Mortgage”) securing financing with respect to the Property or such
portion. Any mortgagee or trust deed beneficiary of the Property or
any portion thereof or any improvements thereon and its
successors and assigns (“Mortgagee”) shall be entitled to the
following rights and privileges.
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 Mortgagee and/or the
interest of every owner of the Property, or part thereof, whose title
thereto is acquired by foreclosure, trustee sale or otherwise;
provided, however, Mortgagee and such owner shall not be
responsible for any matters that occurred prior to their acquisition of
the Property or such portion.
12.4 Written Notice of Default. If a non-monetary default is not cured by
Developer within sixty (60) (days after written notice by City to
Developer or a monetary default is not cured within sixty (60) days
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after written notice by City to Developer, then each Mortgagee shall
be entitled to receive written notice from City of the applicable
default by Developer under this Agreement provided the Mortgagee
has delivered a written request to the City for such notice and shall
have provided its address for notices in writing to the City. Each
such Mortgagee shall have a further right, but not the obligation, to
cure such default for an additional period of thirty (30) days after
delivery of such notice of default by City to the Mortgagee. City
shall not exercise any right or remedy granted under this
Agreement against Developer by reason of Developer’s breach
without allowing the Mortgagee to cure the same as specified
herein.
13. Estoppel Certificate. At any time and from time to time, Developer may
deliver written notice to City and City may deliver written notice to
Developer requesting that such Party certify in writing that, to the
knowledge of the certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment, and (iii)
the requesting Party is not in breach of this Agreement, or if in breach, a
description of each such breach. The Party receiving such a request shall
execute and return the certificate within ten (10) days following receipt of
the notice. City acknowledges that a certificate may be relied upon by
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 twenty (20) 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. All City Council decisions or determinations regarding
the Project or the administration of this Agreement shall also be subject to
judicial review pursuant to Code of Civil Procedure section 1094.5,
provided that, pursuant to Code of Civil Procedure section 1094.6, any
such action must be filed in a court of competent jurisdiction not later than
twenty (20) days after the date on which the City Council's decision
becomes final. The Developer shall not seek judicial review of any staff
decision without first having exhausted its remedies pursuant to this
section.
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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. City and Developer agree to cooperate in
defending any legal action instituted by a third party or other government
entity or official challenging the validity of this Agreement. In the event of
any litigation challenging the effectiveness of this Agreement or any
portion thereof, this Agreement shall remain in full force and effect while
such litigation, including any appellate review, is pending, unless a court of
competent jurisdiction orders otherwise. Developer shall indemnify,
defend with counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all losses,
liabilities, fines, penalties, costs, claims, demands, damages, injuries or
judgments arising out of, or resulting in any way from, Developer's
performance pursuant to this Agreement including, but not limited to,
Developer’s construction of the Project on the Property and any injury
sustained by any person in connection with the construction or partial
construction of buildings and improvements on the Property.
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.
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18. Operative Date. As described in Subsection 1.9 above, this Agreement
shall become operative on the Operative Date, being the date the
Enabling Ordinance becomes effective pursuant to Government Code
Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of
twenty (20) years commencing on the Operative Date or until one year
after the issuance of the final building permit for occupancy of the last unit
of the Project whichever occurs last, unless said term is amended or the
Agreement is sooner terminated as otherwise provided herein. Expiration
of the term or earlier termination of this Agreement shall not automatically
affect any Project Approval or Subsequent Approval or building permit or
final building permit that has been granted or any right or obligation arising
independently from such Project Approval or Subsequent Approval or
building permit or final building permit.
Upon expiration of the term or earlier termination of this Agreement, this
Agreement shall have no further force and effect and the Parties shall
execute any document reasonably requested by any Party to remove this
Agreement from the public records as to the Property, and every portion
thereof, to the extent permitted by applicable laws.
Notwithstanding the foregoing, the following shall survive the expiration or
earlier termination of this Agreement: (i) all obligations arising under this
Agreement prior to the expiration or earlier termination of this Agreement
that expressly survive the termination of this Agreement; and (ii) Section
16 of this Agreement.
20. Notices. All notices and other communications given pursuant to this
Agreement shall be in writing and shall be deemed received when
personally delivered or upon the third (3rd) day after deposit in the United
States mail, registered or certified, postage prepaid, return receipt
requested, to the Parties at the addresses set forth in Exhibit “B” attached
hereto and incorporated herein.
Any Party may, from time to time, by written notice to the other, designate
a different address which shall be substituted for the one above specified.
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.
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22. Waiver. No waiver of any provision of this Agreement shall constitute a
waiver of any other provision, whether or not similar; nor shall any such
waiver constitute a continuing or subsequent waiver of the same provision.
No waiver shall be binding, unless it is executed in writing by a duly
authorized representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of
this Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering
into and performing under this Agreement, it is acting as an independent
entity and not as an agent of any of the other Parties in any respect.
Nothing contained herein or in any document executed in connection
herewith shall be construed as creating the relationship of partners, joint
ventures or any other association of any kind or nature between City and
Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into
for the sole benefit of the Parties and their successors in interest. No
other person shall have any right of action based upon any provision of
this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the
County of Ventura by the City Clerk of City within the period required by
Chapter 15.40 of the Moorpark Municipal Code of City or any successor
thereof then in effect.
27. Cooperation Between City and Developer. City and Developer shall
execute and deliver to the other all such other and further instruments and
documents as may be necessary to carry out the purposes of this
Agreement.
28. Rules of Construction. The captions and headings of the various sections
and subsections of this Agreement are for convenience of reference only,
and they shall not constitute a part of this Agreement for any other
purpose or affect interpretation of the Agreement. Should any provision of
this Agreement be found to be in conflict with any provision of the Project
Approvals or the Subsequent Approvals, the provision of this Agreement
shall prevail.
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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; Institution of Legal Action. 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, State of California or in the United States District
Court for the Central District of California.
31. Attorneys’ Fees. In the event any action, suit or proceeding is brought for
the enforcement or declaration of any right or obligation pursuant to, or as
a result of any alleged breach of, this Agreement, the prevailing Party shall
be entitled to its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such action, suit or
proceeding shall include an award thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts,
each of which shall be deemed an original, but all of which constitute one
and the same instrument.
33. Authority to Execute. Developer warrants and represents that to its
knowledge as of the Operative Date and with respect to each entity that is
defined as Developer: (i) it is duly organized and existing; (ii) it is duly
authorized to execute and deliver this Agreement; (iii) by so executing this
Agreement, Developer is formally bound to the provisions of this
Agreement; (iv) Developer’s entering into and performance of its
obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound; and (v) there is no existing
or threatened litigation or legal proceeding of which Developer is aware
that could prevent Developer from entering into or performing its
obligations set forth in this Agreement.
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Page 33
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
WARMINGTON RESIDENTIAL CALIFORNIA, INC., a California corporation
By:
Name:
Title:
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EXHIBIT “A”
LEGAL DESCRIPTION
The land referred to herein below is situated in the City of Moorpark, County of Ventura,
State of California, and is described as follow:
Parcels 1, 2, and 3 of parcel map filed in book 17, page 88 of parcel maps, in the office
of the county recorder of said county, and, a portion of Lots 37 and 38, as per map
recorded in book 3, page 39 of miscellaneous records in the office of the county
recorder of said county.
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EXHIBIT “B”
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Warmington Residential California, Inc.,
3090 Pullman Street
Costa Mesa, California 92626
Attention: Matt Tingler, Joe Oftelie and Joel Kew
Telephone: (714) 434-4324
Email: mtingler@warmingtongroup.com, joftelie@warmingtongroup.com,
jkew@warmingtongroup.com
With a copy to:
Ross, Wolcott, Teinert & Prout LLP
3151 Airway Avenue, Building S-1
Costa Mesa, California 92626
Attention: Cynthia M. Wolcott and Elizabeth T. Hall
Telephone: (714) 444-3900
email: cwolcott@rossllp.com and ehall@rossllp.com
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EXHIBIT “C”
PROJECT SITE PLAN
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