HomeMy WebLinkAboutAGENDA REPORT 2022 0921 CCSA REG ITEM 11ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of September 21, 2022
ACTION ADOPTED ORDINANCE NO. 506.
(ROLL CALL VOTE: UNANIMOUS).
BY A. Hurtado.
A. Consider Ordinance No. 506 Approving Zone Change No. 2005-02, a Zone
Change from Residential Planned Development (RPD-7-14U) to Residential
Planned Development (RPD-15-25U), and Approving Development Agreement
No. 2005-04, on the Application of John Newton on behalf of John C. Chiu, FLP-
N. Staff Recommendation: Waive full reading, declare Ordinance No. 506 read for
the second time, and adopted as read. (ROLL CALL VOTE REQUIRED)
Item: 11.A.
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ORDINANCE NO. 506
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING ZONE CHANGE NO. 2005-02, A
ZONE CHANGE FROM RESIDENTIAL PLANNED
DEVELOPMENT (RPD-7-14U) TO RESIDENTIAL PLANNED
DEVELOPMENT (RPD-15-25U), AND APPROVING
DEVELOPMENT AGREEMENT NO. 2005-04, ON THE
APPLICATION OF JOHN NEWTON ON BEHALF OF JOHN
C. CHIU, FLP-N
WHEREAS, on December 5, 2005, John Newton (Applicant) submitted a
development application for General Plan Amendment (GPA), Amendment No. 4 to the
Downtown Specific Plan (SPA), Vesting Tentative Tract Map (VTTM), Residential
Planned Development (RPD), Zone Change (ZC), and Development Agreement (DA) for
the subdivision of land and development of 60 attached multi-family residential
condominium units and associated improvements (Project, Proposed Project). The
Project includes an application for a GPA land use designation change of the 2.44 acres
of land from High Density Residential (H) to Very High Density Residential (VH). The
Project includes a SPA to Sections 2.2.3 and 2.3.3 of the Downtown Specific Plan to
expand density incentives when separate lots are combined for residential purposes, in
certain RPD zones. The request also includes a VTTM to subdivide the property into one
common area parcel and 60 residential condominium units. The Project also includes a
ZC from Residential Planned Development (RPD-7-14U) to Residential Planned
Development (RPD-15-25U). The Project Site includes 2.44 acres, located on Assessor’s
Parcel Numbers [APNs] 512-0-061-310, 512-0-061-320, 512-0-061-050, 512-0-061-060,
512-0-061-210 (Project Site, Site); and
WHEREAS, pursuant to Section 15074 of the State Guidelines for the California
Environmental Quality Act (“CEQA”), (the “State CEQA Guidelines”), an Initial Study and
Draft Mitigated Negative Declaration (“IS/MND”), dated May 18, 2022 have been
prepared by Chambers Group, Inc., and based on the type and intensity of Project and
information contained therein, the Initial Study and Draft Mitigated Negative Declaration
conclude that the Project, with the proposed mitigation measures, would not have a
significant adverse effect on the environment; and
WHEREAS, the IS/MND identified that the Project will have no or less than
significant effects on aesthetics, hydrology/water quality, noise, recreation,
utilities/service systems, agriculture/forestry resources, greenhouse gas emissions, land
use/planning, population/housing, transportation, wildfire, air quality, energy, hazards and
hazardous waste, mineral resources, and public services. In addition, the IS/MND
identified that the Project’s impacts on biological resources, geology/soils, and tribal
cultural resources are potentially significant but that all such impacts can be reduced to
levels of insignificance by implementation of the mitigation measures identified in the
IS/MND; and
Item: 11.A.
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WHEREAS, on May 18, 2022, the City of Moorpark Community Development
Department, as the lead agency for the Project, published pursuant to California
Environmental Quality Act (CEQA) a Notice of Intent to Adopt a Mitigated Negative
Declaration (MND) for the Everett Street Terrace Project (State Clearinghouse Number
2022050391) analyzing the Project’s potential impacts on the environment and provided
copies of it for a 30-day comment period, between May 18, 2022, and June 17, 2022; and
WHEREAS, the City received five comments on the IS/MND during the public
review period and thereafter the City prepared written responses to all comments
received on the Draft IS/MND and those responses to comments are incorporated into
the Final IS/MND. A link to the copy of the IS/MND is set forth in Attachment 4 to the staff
report for this item, and is incorporated hereby by this reference and is on file with the
Community Development Department; and
WHEREAS, in connection with the approval of a project involving the preparation
of an IS/MND that identifies one or more potentially significant environmental effects,
CEQA requires the decision-making body of the lead agency to incorporate feasible
mitigation measures that would reduce those potentially significant effects to a less-than-
significant level; and
WHEREAS, pursuant to State CEQA Guidelines Section 15074, whenever a lead
agency approves a project requiring the implementation of measures to mitigate or avoid
potentially significant effects on the environment, CEQA also requires a lead agency to
adopt a mitigation monitoring and reporting program to ensure compliance with the
mitigation measures during project implementation. A copy of the Mitigation Monitoring
and Reporting Program (“MMRP”) for the Project, which defines the measures which
would be imposed on the Project to mitigation or avoid potentially significant
environmental impacts, is attached to Resolution No. 2022-4121; and
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 IS/MND and upon other substantial
evidence that has been presented at the hearings and in the record of the proceedings.
The Final IS/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. 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.
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SECTION 3. Prior to taking action on this Ordinance, the City Council adopted
the IS/MND and MMRP 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, and approved General Plan Amendment No. 2005-02; Amendment
No. 4 to the Downtown Specific Plan; Vesting Tentative Tract Map No. 5739; and
Residential Planned Development No. 2005-05 subject to the Conditions of Approval as
attached to City Council Resolution No. 2022-4121.
SECTION 4. ZONE CHANGE FINDINGS: Based upon the information set forth
in the agenda report(s), accompanying studies, the Project Final IS/MND and appendices,
and oral and written public testimony, the City Council finds that the proposed Zone
Change depicted on Exhibit A, to change the zoning designation for the Project Site from
Residential Planned Development (PRD-7-14U) to Residential Planned Development
(RPD-15-25U) is consistent with the General Plan, as amended by GPA 2005-02,
because the new General Plan Land Use Designation of the Site, as approved by GPA
2005-02 will allow for the development of a density up to 25 units per acre and the
proposed Project will allow for development of 60 attached multi-family residential
condominium units at a density of 24.6 dwelling units per acre. In addition, the proposed
zoning designation is consistent with the existing General Plan, as amended by GPA
2005.02, including the City’s current Housing Element, the proposed Amendment No. 4
to the Downtown Specific Plan, all of which is summarized in Section 2.2.2 of the Final
IS/MND.
SECTION 5. 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 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, 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
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Section 15.40.030 and shall be processed through a duly-noticed public
hearing process as required by law.
C. The Development Agreement includes all provisions required pursuant to
Government Code Sections 65865.2. The duration of the Development
Agreement is 20 years, as specified in Section 19. The permitted uses on
the property are governed by the Project Approvals as defined in Section
1.4 and as provided in Section 4.1. The densities of uses on the property
are specified in Section 4.2 and as specified in the Project Approvals. The
maximum height and size of the proposed buildings are specified in Section
4.2 and the Project Approvals. Provisions for reservation or dedication of
land for public purposes are also provided in Section 4.4 and the Project
Approvals.
SECTION 6. 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. 2005-02, as depicted on
Exhibit A, and hereby amends the Official Zoning Map accordingly. 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. 2005-04, attached hereto and incorporated herein as
Exhibit B to this Ordinance.
SECTION 7. 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 8. 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 9. The Applicant shall execute the Development Agreement after the
adoption of this Ordinance. The City shall execute the Development Agreement after the
effective date of this Ordinance.
SECTION 10. Pursuant to Gov’t Code Section 65868.5, no later than ten (10)
days after both the effective date of the Ordinance that approved Development
Agreement No. 2005-04 and the execution of the Development Agreement, the City Clerk
shall record with the County Recorder a copy of the Development Agreement.
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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 21st of September, 2022.
__________________________________
Janice S. Parvin, Mayor
ATTEST:
___________________________________
Ky Spangler, City Clerk
Attachments:
Exhibit A: Zone Change Map
Exhibit B: Development Agreement
539
Existing Proposed
Single Family Residential (R-1)
Rural Exclusive (RE-1AC)
Residential Planned Development (RPD-19U)
Residential Planned Development (RPD-20U-N-D)
Commercial Old Town (C-OT)
Residential Planned Development (RPD-15-25U)
EXHIBIT AOrdinance No. 506
Page 6
540
Ordinance No. 506 EXHIBIT B
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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
JOHN C. CHIU, FLP-N
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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 JOHN C. CHIU, FLP-N, a Family Limited
Partnership, the owner of real property within the City of Moorpark that is governed by
Residential Planned Development Permit 2005-02 (referred to hereinafter as
“Developer”). City and Developer are referred to hereinafter collectively as a “Party” and
collectively as the “Parties.” In consideration of the mutual covenants and agreements
contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts and for the
following purposes, each of which is acknowledged as true and correct by the
Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark
Municipal Code Chapter 15.40, City is authorized to enter into a binding
contractual agreement with any person having a legal or equitable interest
in real property within its boundaries for the development of such property
in order to establish certainty in the development process.
1.2 Developer is the owner in fee simple of certain real property in the City of
Moorpark identified in the legal description set forth in Exhibit “A” which
exhibit is attached hereto and incorporated by reference, commonly known
as Everett Street Terraces Condominium, 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
September 7, 2022, the City Council adopted Resolution No. 2022-4121,
adopting the Mitigated Negative Declaration (“MND”) 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. 2005-02, Zone Change
(ZC) No. 2005-02, Amendment No. 4 to the Downtown Specific Plan (SPA),
Residential Planned Development (RPD) Permit No. 2005-02, Vesting
Tentative Tract Map (TTM) No. 5739 including all subsequently approved
modifications and permit adjustments to the RPD Permit, VTTM, and all
amendments thereto (collectively “the Project Approvals”; individually “a
Project Approval”) provide for the development of the Property with 60
townhouse condominiums and the construction of any improvements in
connection therewith (“the Project”).
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1.5 By this Agreement, City desires to obtain the binding agreement of
Developer to develop the Property in accordance with the Project Approvals
and this Agreement. In consideration thereof, City agrees to limit the future
exercise of certain of its governmental and proprietary powers to the extent
specified in this Agreement.
1.6 By this Agreement, Developer desires to obtain the binding agreement of
City to permit the development of the Property in accordance with the
Project Approvals and this Agreement. In consideration thereof, Developer
agrees to waive its rights to legally challenge the limitations and conditions
imposed upon the development of the Property pursuant to the Project
Approvals and this Agreement and to provide the public benefits and
improvements specified in this Agreement.
1.7 City and Developer acknowledge and agree that the consideration that is 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 July 26, 2022, the Planning Commission commenced a duly noticed
public hearing on this Agreement, and at the conclusion of the hearing on
July 26, 2022 recommended approval of this Agreement.
1.9 On September 7, , 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. 506 (“the Enabling Ordinance”) that
approves this Agreement. Thereafter on September 21, , 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”.
3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits
of the Agreement inure to, each Party and each successive successor in interest
thereto (subject to Subsection 3.2 below) and constitute covenants that run with
the Property. Whenever the terms “City” and “Developer” are used herein, such
terms shall include every successive successor in interest thereto.
3.1 Constructive Notice and Acceptance. Every person who acquires any right,
title or interest in or to any portion of the Property shall be conclusively
deemed to have consented and agreed to be bound by this Agreement,
whether or not any reference to the Agreement is 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
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successor(s) in interest, the transferor shall be released from its obligations
hereunder with respect to the portion of Property conveyed as of the
effective date of the conveyance, provided that the transferee expressly
assumes all obligations of the transferred portion of the Property and a copy
of the executed assignment and assumption agreement is delivered to the
City prior to the conveyance. Failure to provide a written assumption
agreement hereunder shall not negate, modify or otherwise affect the
liability of the transferee pursuant to this Agreement. Nothing contained
herein shall be deemed to grant to City discretion to approve or deny any
such conveyance, except as provided in Subsection 6.13 of this Agreement
with respect to the sale of completed “affordable units” (as defined in that
subsection) to qualified buyers. Notwithstanding the foregoing, this
Agreement shall not be binding upon the transferee of a Completed Unit
with respect to the transferee’s interest in such Completed Unit, and the
rights and obligations of Developer under this Agreement shall not run with
the portion of the Property that is conveyed with the Completed Unit after
such conveyance of the Completed Unit by Developer or its successor in
interest. For purposes of this Agreement, “Completed Unit” means a
completed residential unit within the Property for which the City has issued
a certificate of occupancy.
4. Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
4.1 Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project Approvals
and this Agreement.
4.2 Development Standards. All design and development standards, including
but not limited to density or intensity of use and maximum height and size
of buildings, that shall be applicable to the Property are set forth in the
Project Approvals and this Agreement.
4.3 Building Standards. All construction on the Property shall adhere to all City
building codes in effect at the time the plan check or permit is approved per
Title 15 of the Moorpark Municipal Code and to any federal or state building
requirements that are then in effect (collectively “the Building Codes”).
4.4 Reservations and Dedications. All reservations and dedications of land for
public purposes that are applicable to the Property are set forth in the
Project Approvals and this Agreement.
5. Vesting of Development Rights.
5.1 Vested Right to Develop, Timing of Development. Developer and its
successors in interest shall have the vested right to develop the Property in
accordance with the terms and provisions of the Project Approvals and this
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Agreement. The Parties intend that this Agreement, together with the
Project Approvals, shall serve as the controlling document for all
subsequent actions, discretionary and ministerial, relating to the
development and occupancy of the Property, including, without limitation,
all Subsequent Approvals (as defined below). Developer shall have the
right, without obligation, to develop the Property in such order and at such
rate and times as Developer deems appropriate within the exercise of its
subjective business judgment.
No future amendment of any existing City ordinance or resolution, or future
adoption of any ordinance, resolution or other action, that purports to limit
the rate or timing of development over time or alter the sequencing of
development phases, whether adopted or imposed by the City Council or
through the initiative or referendum process, shall apply to the Property
provided the Property is developed in accordance with the Project
Approvals and this Agreement. Nothing in this subsection shall be
construed to limit City’s right to ensure that Developer timely provides all
infrastructure required by the Project Approvals, Subsequent Approvals,
and this Agreement.
5.2 Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through the
initiative or referendum process, shall apply to any portion of the Property,
unless the Developer has agreed in writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps (e.g.
tentative, vesting tentative, parcel, vesting parcel, and final maps),
subdivision improvement agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g. site plans, architectural
plans and landscaping plans), encroachment permits, and sewer and water
connections that are necessary to or desirable for the development of the
Project (collectively “the Subsequent Approvals”; individually a “Subsequent
Approval”) shall be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent Approvals do not
include building permits.
Subsequent Approvals shall be governed by the Project Approvals and by
the applicable provisions of the Moorpark General Plan, the Moorpark
Municipal Code and other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently adopted or approved
by the City Council or through the initiative or referendum process and in
effect at the time that the application for the Subsequent Approval is
deemed complete by City (collectively “City Laws”), except City Laws that:
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(a) change any permitted or conditionally permitted uses of the Property
from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any part
thereof, or otherwise require any reduction in the number of
proposed buildings or other improvements from what is allowed by
the Project Approvals;
(c) limit or control the rate, timing, phasing or sequencing of the
approval, development or construction of all or any part of the Project
in any manner, provided that all infrastructure required by the Project
Approvals to serve the portion of the Property covered by the
Subsequent Approval is in place or is scheduled to be in place prior
to completion of construction;
(d) are not uniformly applied on a citywide basis to all substantially
similar types of development projects or to all properties with similar
land use designations;
(e) prohibit or regulate development on slopes with grades greater than
20 percent, including without limitation Moorpark Municipal Code
Chapter 17.38 or any successor thereto, within the Property; or
(f) 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 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 substantially
consistent with this Agreement and does not alter the permitted uses or
increase the Project’s density, intensity, maximum height, size of buildings
or the amount of 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
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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) the MMRP of the MND and any subsequent or supplemental
environmental actions. Developer agrees not to apply for any non-
residential uses on the Property. The clubhouse and private recreational
facilities are considered to be part of the residential uses.
6.2 Condition of Dedicated or Conveyed Property. All lands and interests in
land dedicated to City shall be free and clear of liens and encumbrances
other than easements or restrictions that do not preclude or interfere with
use of the land or interest for its intended purpose, as reasonably
determined by City.
6.3 Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential dwelling unit within the Property, Developer shall
pay City a one-time development fee as described herein (the
“Development Fee”). The Development Fee may be expended by City in
its sole and unfettered discretion. The amount of the Development Fee
shall be 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, 2025, 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
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Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The calculation
shall be made using the month of October over the prior October.
In the event there is a decrease in the referenced Index for any annual
indexing, the current amount of the fee shall remain until such time as the
next subsequent annual indexing which results in an increase.
6.4 Traffic Mitigation Fee. As a condition of the issuance of 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, 2025, 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.
6.5 Los Angeles Avenue Area of Contribution (LAAOC) Fees. Developer shall
pay the LAAOC fee in effect at the time of building permit issuance for each
residential dwelling unit within the Property.
6.6 Air Quality Fees. Developer agrees 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 an 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, 2025,
then commencing on January 1, 2025, and annually thereafter, the Air
Quality Fee shall be adjusted by any increase in the Consumer Price Index
(CPI) until all fees have been paid. The CPI increase shall be determined
by using the information provided by the U.S. Department of Labor, Bureau
of Labor Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The calculation
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shall be made using the month of October over the prior month of October.
In the event there is a decrease in the CPI for any annual indexing, the fee
shall remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase.
6.7 Park Fees. Prior to the issuance of a building permit for each residential
dwelling unit within the Property, Developer shall pay a one-time fee in lieu
of the dedication of parkland and related improvements (“Park Fee”). The
amount of the Park Fee shall be Twelve Thousand Five Hundred Forty-Two
Dollars and Two Cents ($12,542.02) for each residential dwelling unit within
the Property. If the Park Fee is not paid by January 1, 2025, the Park Fee
shall be adjusted annually commencing January 1, 2025, by the larger
increase of a) or b) as follows:
(a) The change in the CPI. The change shall be determined by using
the information provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the Los
Angeles/Long Beach/Anaheim metropolitan area during the prior
year. The calculation shall be made using the month of October over
the prior October; or
(b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index (Bid Price Index) for Selected California
Construction Items for the twelve (12) month period available on
December 31 of the preceding year (annual indexing).
(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.
(d) Developer agrees that the above-described payments shall be
deemed to satisfy the parkland dedication requirement set forth in
California Government Code Section 66477 et seq. for the Property.
(e) In the event Developer provides offsite open space or constructs
significant offsite landscaping improvements that add to the overall
visual aesthetics of the project, are visible from Walnut Canyon, abut
the Project, and are to the satisfaction of the City Manager at his or
her sole discretion, such costs for construction shall be credited on a
dollar-for-dollar basis toward the Park Fee.
6.8 Community Services Fee. As a condition of issuance of a building permit
for each residential dwelling unit within the boundaries of the Project,
Developer shall pay City a one-time community services fee as described
herein (Community Services Fee). The Community Services Fees may be
expended by City in its sole and unfettered discretion. The amount of the
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Community Services Fee shall be Three Thousand Two Hundred Twenty-
Five Dollars and Nine Cents ($3,225.09) per residential dwelling unit.
Commencing on January 1, 2025, and annually thereafter, the Community
Services Fee shall be adjusted by any increase in the Consumer Price Index
(CPI) until all Community Service Fee have been paid. The CPI increase
shall be determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics, for All Urban
Consumers within the Los Angeles/Long Beach/Anaheim metropolitan area
during this prior year. The calculation shall be made using the month of
October over the prior month of October or in the event there is a decrease
in the CPI for any annual indexing, the Community Service Fee shall remain
at its then current amount until such time as the next subsequent annual
indexing which results in an increase.
6.9 Art in Public Places Fee. Developer agrees to pay the Art in Public Places
Fee (Art Fee) in effect at the time of building permit issuance for each
building prior to the issuance of the building permit for that residential
building within the Project consistent with City Resolution No. 2005-2408 or
any Successor Resolution (1.0 percent of total building valuations excluding
land value and off-site improvement costs).
6.10 Other Development and Processing Fees. In addition to fees specifically
mentioned in this Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the rate and amount in
effect at the time the fee is required to be paid. Said fees include but are
not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities
Fees, drainage, entitlement processing fees, and plan check and permit
fees for buildings and public improvements. Developer further agrees that
unless specifically exempted by this Agreement, it is subject to all fees
imposed by City at the Operative Date of this Agreement and such future
fees imposed as determined by City in its sole discretion so long as such
fees are imposed on projects similar to the Project or on property similar to
the Property.
6.11 Processing Fees. On the Operative Date, Developer shall pay all
outstanding City processing costs related to preparation of this Agreement,
the Project Approvals and the MND.
6.12 Community Facilities District
(a) It is the mutual intent of the Parties that the development of the
Project will not have any impact on or require any contribution from
the General Fund of the City. To facilitate such intent, the City and
Developer shall use reasonable efforts to form a Community
Facilities District(s) (“CFD”), pursuant to Chapter 2.5 of Part 1 of
Division 2 of the California Government Code (Government Code
Section 53311 et seq.) (the “CFD Act”), the Streets and Highways
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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. Such facilities and services may include but
are not limited to: public facility fees, construction and installation of
landscaping, and future costs for the maintenance of landscaping
and irrigation of the landscaped areas.
(b) Developer shall, prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map: (i) file with the City
a petition for the formation of the CFD, (ii) provide any deposit
required by Section 53318 of the CFD Act, (iii) not oppose formation
of the CFD and (iv) vote in favor of the special tax to fund the CFD.
(c) Developer acknowledges and agrees that the City will not accept any
improvements or facilities to be maintained by the CFD nor shall the
Developer receive any payments from the CFD for any
improvements or facilities until such facilities and improvements
have been inspected and the City determines in its reasonable
discretion, that such improvements and facilities have been
completed in accordance with the applicable plans and have no liens
outstanding.
(d) 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.
(e) 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.
6.13 Densities Allowed for Development and Affordable Housing.
(a) Developer agrees that densities vested and incentives and
concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to
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which Developer is entitled under the Moorpark Municipal Code,
Government Code Sections 65915 through 65917.5 or both;
Developer shall not be entitled to further density bonuses or
incentives or concessions and further agrees, in consideration for the
density bonus obtained through the Project Approvals that is greater
than would otherwise be available, to provide a total of nine
(9) housing units. Six (6) of the nine (9) total units shall have a
minimum of one thousand one hundred (1,100) square feet and be
designated affordable for low-income households (not to exceed
80% of median income adjusted for family size). Five (5) of those six
(6) units shall each have a minimum of two (2) bedrooms, two
(2) bathrooms. The remaining one (1) unit shall have a minimum of
two (2) bedrooms, one (1) bathroom. Three (3) of the nine (9) total
units shall have a minimum of 1,000 square feet and be designated
affordable for very low-income households (not to exceed 50% of
median income adjusted for family size). One (1) of those three
(3) units shall have a minimum of two (2) bedrooms and two
(2) bathrooms. The remaining two (2) units shall have a minimum of
two (2) bedrooms and one (1) bathroom each. The location of each
of the units on the Property will be determined in consultation with
the City to ensure there is a sufficient mix of affordable units available
on each floor of the Project. These nine (9) housings units may be
referred to as affordable units or units affordable to low or very low-
income households or required affordable units, as set forth above.
(b) Developer explicitly acknowledges that its agreement to construct
these affordable units is given both as specific consideration for both
the density bonus and in general as consideration for City’s
willingness to negotiate and enter into this Agreement and for the
valuable consideration given by City through this Agreement.
Developer further acknowledges that its agreement to construct
these affordable units is not the result of an existing policy or
regulation imposed by City but instead is the result of arm’s length
negotiation between Parties.
(c) Developer further agrees that it shall provide the required number of
affordable housing units as specified above regardless of the cost to
acquire or construct said housing units. Developer further agrees
that City has no obligation to use eminent domain proceedings to
acquire any of the required affordable housing units and that this
Subsection 6.13 is specifically exempt from the requirements of
Subsection 7.2.
(d) Prior to recordation of the first Final Map for this Project, the Parties
agree to execute an Affordable Housing Purchase and Sale
Agreement (Affordable Housing Agreement) that sets forth the
Developer’s and City’s obligations and provides procedures and
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requirements to ensure that all of the required affordable housing
units are provided consistent with this Agreement and applicable
State laws and remains affordable for the longest feasible time. The
Affordable Housing Agreement shall include but not be limited to the
following items: initial purchase price, market value, buyer eligibility,
affordability and resale covenants and restrictions, equity share and
second trust deed provision, respective role of City and Developer,
the responsibility of providing the affordable units by each developer
in the event of successors and/or assigns to this Agreement, quality
of and responsibility for selection of amenities and applicability of
home warranties to meet all or a portion of its obligation and any
other items determined necessary by the City. Developer shall pay
the City’s direct costs for preparation and review of the Affordable
Housing Agreement up to a maximum of ten thousand Dollars
($10,000.00).
(e) All affordable units shall meet the criteria of all California Health and
Safety Code statutes and implementing regulations pertaining to for-
sale Affordable Housing units so as to qualify as newly affordable to
low-income households and to satisfy a portion of the City’s RHNA
obligation. The affordable units required by this Agreement are
consideration for City’s entry into this Agreement and therefor none
of the affordable units shall duplicate or substitute for the affordable
housing requirement of any other developer or development project.
All subsequent approvals required of City under this Subsection 6.13
shall be made at City’s sole discretion. If any conflict exists between
this Agreement and the Affordable Housing Agreement required by
and negotiated pursuant to this Agreement or the conditions of
approval for Tentative Tract Map No. 5739 and/or RPD Permit
No. 2005-02, then the Affordable Housing Agreement shall prevail.
(f) In the event the monthly HOA fees exceed two hundred dollars
($200.00), Developer shall deposit one hundred twenty dollars
($120.00) for each dollar or portion thereof of the monthly HOA fees
that are in excess of two hundred dollars ($200.00) into a City
administered trust account to assist with future HOA fees for each
affected unit.
(g) The Affordable Sales Price for low-income buyers shall not exceed
affordable housing cost, as defined in Sec. 50052.5(b) (3) of
California Health and Safety Code. Section 50052.5(h) of the
California Health and Safety Code provides that an appropriate
household size in terms of determining purchase price, is one more
person than the number of bedrooms. This means that the pricing
for a two (2) bedroom unit will be based on a household of three
(3) regardless of the actual size of the household purchasing the unit.
For example, the monthly “affordable housing cost” for a two
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(2) bedroom unit would be 30% times 70% of the current median
income for a household of three (3) in Ventura County, divided by
twelve (12). This monthly amount includes the components
identified in Section 6920 of Title 25 of the California Code of
Regulation shown below (See Section 50052.5(c) of the Health and
Safety Code). The Affordable Sales Price for a low-income
household purchasing a two (2) bedroom unit under current market
conditions, based upon the following assumptions:
The Affordable Sales Price for very-low-income buyers shall not
exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of
California Health and Safety Code. Section 50052.5(h) of the
California Health and Safety Code provides that an appropriate
household size in terms of determining purchase price, is one more
person than the number of bedrooms. This means that the pricing
for a two (2) bedroom unit will be based on a household of three
(3) regardless of the actual size of the household purchasing the unit.
For example, the monthly “affordable housing cost” for a two
(2) bedroom unit would be 30% times 50% of the current median
income for a household of three (3) in Ventura County, divided by
twelve (12). This monthly amount includes the components
identified in Section 6920 of Title 25 of the California Code of
Regulation shown below (See Section 50052.5(c) of the Health and
Safety Code). The Affordable Sales Price for a very-low-income
household purchasing a two (2) bedroom unit under current market
conditions, based upon the following assumptions:
Item Detail Amount 2 Bedroom
Affordable
Sale $175,500.00
Down Payment 5% of Affordable Sales Price $8,775.00
Loan Amount Affordable Sales Price less
Down $166,725.00
Interest Rate 4.875%
Monthly
Property Tax
1.25% of Initial
Purchase Price $183.00
LMD Not Currently N/A
HOA $200.00
Fire Insurance $60.00
Maintenance $20.00
Utilities $190.00
Low Income Buyer
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Item Detail Amount
3 BedroomAffordable
Sale $103,000
Down Payment 5% of Affordable
Sales Price $5,150
Loan Amount Affordable Sales
Price less Down $97,850
Interest Rate 4.875%
Monthly
Property Tax
1.25% of Initial
Purchase Price $107
LMD Not Currently N/A
HOA $200
Fire Insurance $60
Maintenance $20
Utilities $190
Very - Low Income Buyer
(h) The assumptions associated with the above purchase price figures
for low-income households include a 5% down payment, based on
Affordable Sales Price for a two (2) bedroom unit, mortgage interest
rate of 4.875%, no mortgage insurance, property tax rate of 1.25%,
based on Affordable Sales Price, homeowners’ association dues of
$200.00 per month, fire insurance of $60.00 per month, maintenance
costs of $20.00 per month, and utilities of $190.00 per month for a
two (2) bedroom unit.
(i) Developer acknowledges that changes in market conditions may
result in changes to the Affordable Sales Price, down payment
amounts, mortgage interest rates, and other factors for both low
income and very low-income buyers. Furthermore, if “affordable
housing cost”, as defined in Section 50052.5 of California Health and
Safety Code, should change in the future, the above guidelines will
be modified. The Affordable Housing Purchase and Sale Agreement
negotiated pursuant to this Agreement shall address this potential
change.
Developer acknowledges that amounts listed in the “Low Income
Buyer” and “Very-low Income Buyer” tables in Subsection 6.13(g),
above, are for illustration purposes only and are subject to change.
(j) In the event the City, at its sole discretion purchases one or more of
the units from Developer in lieu of a qualified buyer, the Affordable
Sales Price shall be based on a household size appropriate to the
number of bedrooms in the unit being purchased by the City,
consistent with all requirements of this Subsection 6.13. Developer
agrees that pursuant to City’s rights under this Agreement and/or the
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Affordable Housing Agreement and prior to and upon the sale of a
required unit to a qualified buyer (or City in lieu of a qualified buyer
as determined by City at its sole discretion), City may at its sole
discretion take any actions and impose any conditions on said sale
or subsequent sale of the unit to ensure ongoing affordability to low-
income households and related matters. After the sale of a housing
unit by Developer to a qualified buyer (or City in lieu of a qualified
buyer as determined by City at its sole discretion), City, not
Developer, shall have sole responsibility for approving any
subsequent sale of that housing unit.
(k) Developer agrees that City shall be responsible at its sole discretion
for marketing the affordable units, selecting and qualifying eligible
buyers for these units, and overseeing the escrow processes to sell
the affordable units to low income households, providing the forms
of Deed of Trust, Promissory Note, Resale Refinance Restriction
Agreement and Option to Purchase Property and Notice of
Affordability Restriction on Transfer of Property and all necessary
contracts and related documents to ensure that the referenced
affordable units remain occupied by low income households for the
longest feasible time (the “Affordability Documents”). Developer
further agrees that the difference between the Affordable Sales Price
(as referenced in this Agreement) paid by a qualified buyer and
market value shall be retained by City as a second deed of trust.
(l) Developer shall pay closing costs for each affordable unit, not to
exceed eight thousand dollars ($8,000.00). Beginning
January 1, 2025, and on January 1st for each year thereafter, the
maximum eight thousand dollars ($8,000.00) to be paid for closing
costs shall be increased annually by any percentage increase in the
Consumer Price Index (CPI) for All Urban Consumers for Los
Angeles/Long Beach/Anaheim metropolitan area during the prior
year. The calculation shall be made using the month of October over
the month of October. In the event there is a decrease in the CPI for
any annual indexing, the closing costs for each affordable unit shall
remain at its then current amount until such time as the next
subsequent annual indexing which results in an increase. The
referenced Developer funded closing costs shall be for the benefit of
qualified buyers (or City in lieu of qualified buyers if one or more of
the required units are purchased by the City) in their acquisition of a
unit from Developer not Developer’s acquisition of a unit from one or
more third parties. The Developer’s escrow cost shall not exceed
the then applicable maximum amount per unit regardless of the
number of escrows that may be opened on a specific unit.
(m) Developer warrants that the quality of materials and construction
techniques of the affordable units sold to the qualified low-income
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buyers, or City shall in all manner be identical to that of all other units
constructed in this Project and subject to all Conditions of Approval
and shall meet all Building Codes.
(n) The City shall have the same choices of basic finish options as
purchasers of market rate units in this Project and final walk-through
approval of condition of unit before close of sale. Any basic finish
options provided to buyers of market rate units shall be provided to
City or buyer(s) of the affordable units, including but not limited to
color and style choices for carpeting and other floor coverings,
counter tops, roofing materials, exterior stucco and trim of any type,
fixtures, and other decorative items. City staff person responsible for
affordable housing will select basic finish options for the affordable
units.
(o) Developer agrees that all warranties for the affordable units shall be
the same or better than those for the market rate units, all such
warranties shall inure to the benefit of and be enforceable by the
ultimate occupants of the affordable units and that all warranties by
subcontractors and suppliers shall inure to the benefit of and be
enforceable by such occupants. The home warranties for the
affordable units shall be the same duration as the warranties for the
market rate units and not less than the minimum time required by
State law but in no event less than ten (10) years.
(p) Developer agrees to provide the same amenities for the affordable
units (purchased by the low-income buyer, or City) as those
amenities that are provided for the market rate units. The amenities
shall include but not be limited to concrete roof tiles; air
conditioning/central heating; garage door opener; fireplaces;
washer/dryer hook-ups; garbage disposal; built-in dishwasher, stove,
oven and microwave; windows; wood cabinets; shelving; counter-
tops; floor coverings; window coverings; electrical outlets, lighting
fixtures and other electrical items; plumbing fixtures including sinks,
bathtubs and showers; and door and cabinet hardware, and shall all
be of the same quality and quantity as provided in the Project’s
market rate units as determined by the City’s Community
Development Director and City staff person responsible for City’s
Affordable Housing Programs.
(q) The floor plan and size of the units shall be approved by the
Community Development Director and the City staff person
responsible for City’s Affordable Housing Programs, and each unit
must include a downstairs bathroom.
(r) The Parties agree that prior to and upon the sale of an affordable unit
to a qualified buyer or City, City may at its sole discretion take any
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actions and impose any conditions on buyer eligibility and on said
sale or subsequent sale of the unit to ensure ongoing affordability to
low-income households and related matters. Developer agrees if it
sells any of the affordable units directly to qualified low-income
buyers, all requirements of the buyer, including, but not limited to,
completion of a City approved homebuyer education training
workshop and the Affordability Documents, shall be included as a
requirement of the sale. The language of all such documents shall
be approved by City at its sole discretion. City has sole discretion in
selecting lenders, escrow and title companies and real estate
professionals to assist with the sale of the affordable units.
(s) In the event City is unable to provide a qualified buyer when one of
the affordable units has received final inspection approval,
Developer shall be allowed to continue to obtain building permits
and/or final inspection approval for the non-affordable units. Any
affordable units remaining unsold six (6) months after the final
inspection approval of the 60th unit will be purchased by the City,
which will also be provided for in the Affordable Housing Agreement.
Developer is required to maintain affordable units in move-in
condition until such time as the City finds a buyer. For purposes of
this schedule, final inspection approval requires approval of the
City’s Building Official and Community Development Director.
(t) Developer also agrees that subsidiaries, divisions or affiliates of
Developer may not be used to provide lending, escrow or other
services relevant to the purchase transactions for the affordable
units.
(u) If a qualified low-income buyer is identified by City prior to or at the
time of final inspection approval of any of the affordable units,
Developer shall open escrow for the sale of said unit, which will also
be provided for in the Affordable Housing Agreement and shall enter
escrow directly with the buyer identified by City and proceed to
closing of said escrow. If a qualified low or very-low-income buyer
has not been identified at the time Developer receives final
inspection approval for an affordable unit, City, at its option, may
agree to purchase the affordable unit required to be provided by
Developer for the amount and at the time as provided for in this
agreement. Developer and City agree to use their best efforts to
complete the close of escrow within forty-five (45) days of the final
inspection approval of an affordable unit.
(v) Developer shall satisfy all mechanic’s, laborer’s, material man’s,
supplier’s, or vendor’s liens and any construction loan or other
financing affecting any unit or lot in the Project which has been
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designated for an affordable unit, before the close of escrow for that
affordable unit.
(w) Developer agrees that the required construction of the low-income
affordable units must receive final inspection approval by Developer
on terms consistent with this Agreement and the Affordable Housing
Agreement as specified in the following schedule:
Prior to
Occupancy of
Number of
Affordable Units
20th Unit 3
40th Unit 3
60th Unit 3
Total 9
(x) The required affordable units within the Project shall be designated
as unit (may also be referred to as pad or lot) numbers in the
Buildings within the Project consistent with Exhibit “C” attached
hereto and incorporated herein. The City Manager or the City
Manager’s designee may approve in writing different unit numbers
within the Project so long as the units maintain the minimum square
footage requirements set forth in paragraph (a) above.
(y) Developer shall provide the initial buyer of each Completed Unit in
the Project a disclosure that the Project includes nine (9) residential
dwelling units that will be sold to qualified low or very-low-income
households, as the case may be. The disclosures shall also state
that these nine (9) residential dwelling units have deed restrictions
recorded on their title that restrict the re-sale of these units only to
qualified low-income buyers. The form and language of the
disclosure shall be approved by the City Attorney and Community
Development Director and shall conform to all requirements of the
applicable State agencies pertaining to real estate disclosures.
6.14 Annual Review Procedures. Developer agrees to comply with
Section 15.40.150 of the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual review of this Agreement
and further agrees that the annual review shall include evaluation of its
compliance with the approved MND and MMRP.
6.15 Eminent Domain. Developer agrees that any election to acquire property
by eminent domain shall be at City’s sole discretion, and only after
compliance with all legally required procedures including but not limited to
a hearing on a proposed resolution of necessity.
6.16 Implementation Plan. Prior to the submittal of an application for any
subdivision, or any other development project or entitlement application,
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Developer shall submit and gain approval from City Council a plan to
guarantee the Developer agreements contained in this Agreement and in
the conditions of approval for the VTTM and RPD. The plan shall address
the entities responsible and method and timing of guarantee for each
component of Developer’s obligations and is subject to City approval at its
sole discretion.
6.17 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for the Project shall be made without
reservation, and Developer expressly waives the right to payment of any
such fees under protest pursuant to California Government Code
Section 66020 and statutes amendatory or supplementary thereto.
Developer further agrees that the fees it has agreed to pay pursuant to
Subsections 6.3, 6.4 and 6.8 of this Agreement are not public improvement
fees collected pursuant to Government Code Section 66006 and statutes
amendatory or supplementary thereto.
6.18 CPI Indexes. In the event the “CPI” referred to in Subsections 6.3, 6.6, 6.7
and 6.8 or the Bid Price Index referred to in Subsections 6.4 and 6.7 are
discontinued or revised, a successor index with which the “CPI” and or Bid
Price Index are replaced shall be used in order to obtain substantially the
same result as would otherwise have been obtained if either or both the
“CPI” and Bid Price Index had not been discontinued or revised.
6.19 City Ability to Modify. Developer acknowledges the City’s ability to modify
the development standards and to change the General Plan designation
and zoning of the Property upon the termination or expiration of this
Agreement (if the Project has not been built), and Developer hereby waives
any rights they might otherwise have to seek judicial review of such City
actions to change the development standards, General Plan designation
and zoning to those development standards and density of permitted
development to that in existence prior to the approval of GPA No. 2005-02
and ZC No. 2005-02.
6.20 Homeowners Association. Prior to recordation of the first final map for the
Property, if required by City at its sole discretion, Developer shall form one
or more property owner associations to assume ownership and
maintenance of private recreation, private streets, parking lots, landscape
areas, flood control and NPDES facilities and other amenities within the
Project. The obligation of said Homeowners Associations shall be more
specifically defined in the conditions of approval of the first tentative tract or
parcel map for the property.
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
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processing of applications for Project Approvals and all Subsequent
Approvals and Building Permits for the Project area and if requested in
writing by Developer shall use overtime and independent contractors
whenever possible.
7.2 Easement and Fee Title Acquisitions. If requested in writing by Developer
and limited to City’s legal authority, City at its sole and absolute discretion
shall proceed to acquire, at Developer’s sole cost and expense, easements
or fee title to land in which Developer does not have title or interest in order
to allow construction of public improvements required of Developer
including any land which is outside City’s legal boundaries. The process
shall generally follow Government Code Section 66462.5 et seq. and shall
include the obligation of Developer to enter into an agreement with City,
guaranteed by cash deposits and other security as the City may require, to
pay all City costs including but not limited to, acquisition of the interest,
attorney fees, appraisal fees, engineering fees, City staff costs, and City
overhead expenses of 15% on all out-of-pocket costs.
7.3 Concurrent Entitlement Processing. City agrees that whenever possible as
determined by City in its sole discretion to process concurrently all land use
entitlements for the Project so long as the application for such entitlements
are “deemed complete” in compliance with the requirements of Chapter 4.5
Review and approval of Development Projects (Permit Streamlining Act) of
the California Government Code.
7.4 Park Fees. City agrees that the Park Fee required under Subsection 6.7 of
this Agreement meets all of Developer’s obligations under applicable law
for park land dedication.
7.5 Reimbursements from other Developments. City shall facilitate the
reimbursement to Developer of any costs incurred by Developer that may
be subject to partial reimbursement from other developers as a condition of
approval of a tract map, development permit or development agreement
with one or more other developers and at City’s discretion may include
provisions requiring such reimbursement to Developer for the same in such
other development project conditions of approval.
7.6 Early Grading Agreement. The City Manager is authorized sign an early
grading agreement on behalf of the City to allow rough grading of the Project
prior to City Council approval of a final subdivision map. Said early grading
agreement shall be consistent with the conditions of the Project approved
tentative map and contingent on City Engineer and Director of Community
Development acceptance of a performance bond in a form and amount
satisfactory to them to guarantee implementation of the erosion control plan
and completion of the rough grading; construction of on-site and off-site
improvements consistent with the City Council approved Project and
Tentative Map. In the case of failure to comply with the terms and conditions
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of the early grading agreement, the City Council may by resolution declare
the surety forfeited.
7.7 Hillside Management Ordinance. City agrees that per
Section 17.38.030(M) of the Moorpark Municipal Code, this project is
exempt from the provisions of the Hillside Management Ordinance.
8. Supersession of Agreement by Change of Law. In the event that any state or
federal law or regulation enacted after the date the Enabling Ordinance was
adopted by the City Council prevents or precludes compliance with any provision
of the Agreement, such provision shall be deemed modified or suspended to
comply with such state or federal law or regulation, as reasonably determined
necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be reviewed
annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or
any successor thereof then in effect. The failure of City to conduct any such annual
review shall not, in any manner, constitute a breach of this Agreement by City,
diminish, impede, or abrogate the obligations of Developer hereunder or render
this Agreement invalid or void. At the same time as the referenced annual review,
City shall also review Developer’s compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its obligations hereunder, other
than payment of fees, shall be excused during any period of “Excusable Delay”, as
hereinafter defined, provided that the Party claiming the delay gives written notice
of the delay to the other Parties as soon as possible after the same has been
ascertained. For purposes hereof, Excusable Delay shall mean delay that directly
affects, and is beyond the reasonable control of, the Party claiming the delay,
including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike,
picketing or other labor dispute; I 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:
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(a) practices, or attempts to practice, any fraud or deceit upon City; or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer; or
(b) fails to make any payments required under this Agreement within five
(5) business days after City gives written notice to Developer that the
same is due and payable; or
(c) breaches any of the other provisions of this Agreement and fails to
cure the same within thirty (30) days after City gives written notice to
Developer of such breach (or, if the breach is not able to be cured
within such thirty (30) day period, Developer fails to start to cure the
same within thirty (30) days after delivery of written notice by City of
such breach or fails to thereafter diligently prosecute the cure to
completion).
11.2 Default by City. City shall be in breach of this Agreement if it breaches any
of the provisions of this Agreement and fails to cure the breach within thirty
(30) days after Developer gives written notice to City of the breach (or, if the
breach is not able to be cured within such thirty (30) day period, City fails to
start to cure the same within thirty (30) days after delivery of written notice
from Developer of such breach or fails to thereafter diligently prosecute the
cure to completion).
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
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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.
The remedies for breach of the Agreement by the Developer shall be
injunctive relief and/or specific performance. In addition, and
notwithstanding any other language of this Agreement, if the breach is of
Subsection 6.13 or 6.14 of this Agreement, City shall have the right to
withhold the issuance of building permits from the date that the notice of
violation was given pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of violation.
Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against Developer if it violates any City
ordinance or State statute.
12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this Agreement shall
not prevent or limit Developer, in any manner, at Developer’s sole
discretion, from encumbering the Property or any portion thereof or any
improvements thereon then owned by such person with any mortgage, deed
of trust or other security device (“Mortgage”) securing financing with respect
to the Property or such portion. Any mortgagee or trust deed beneficiary of
the Property or any portion thereof or any improvements thereon and its
successors and assigns (“Mortgagee”) shall be entitled to the following
rights and privileges.
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
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Property, or part thereof, whose title thereto is acquired by foreclosure,
trustee sale or otherwise; provided, however, Mortgagee and such owner
shall not be responsible for any matters that occurred prior to their
acquisition of the Property or such portion.
12.4 Written Notice of Default. If a non-monetary default is not cured by
Developer within thirty (30) days after written notice by City to Developer or
a monetary default is not cured with in five (5) days after written notice by
City to Developer, then each Mortgagee shall be entitled to received written
notice from City of the applicable default by Developer under this
Agreement provided the Mortgagee has delivered a written request to the
City for such notice and shall have provided its address for notices in writing
to the City. Each such Mortgagee shall have a further right, but not the
obligation, to cure such default for an additional period of thirty (30) days
after delivery of such notice of default by City to the Mortgagee. City shall
not commence legal action against Developer by reason of Developer’s
breach without allowing the Mortgagee to cure the same as specified herein.
13. Estoppel Certificate. At any time and from time to time, Developer may deliver
written notice to City and City may deliver written notice to Developer requesting
that such Party certify in writing that, to the knowledge of the certifying Party, (i) this
Agreement is in full force and effect and a binding obligation of the Parties, (ii) this
Agreement has not been amended, or if amended, the identity of each
amendment, and (iii) the requesting Party is not in breach of this Agreement, or if
in breach, a description of each such breach. The Party receiving such a request
shall execute and return the certificate within ten (10) days following receipt of the
notice. City acknowledges that a certificate may be relied upon by 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 express and is in writing. Any
decision by City staff concerning the interpretation and administration of this
Agreement and development of the Property in accordance herewith may be
appealed by the Developer to the City Council, provided that any such appeal shall
be filed with the City Clerk of City within ten (10) days after the affected Developer
receives written notice of the staff decision. The City Council shall render its
decision to affirm, reverse or modify the staff decision within thirty (30) days after
the appeal was filed. The Developer shall not seek judicial review of any staff
decision without first having exhausted its remedies pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance with the provisions
of Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof
then in effect, this Agreement may be amended or terminated, in whole or in part,
by mutual consent of City and the affected Developer.
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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 substantially consistent with this
Agreement and does not alter the permitted uses, increase density,
intensity, maximum height, size of buildings, or alter reservations and
dedications as contained in the Project Approvals or Subsequent
Approvals.
16. Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and agents
from and against any and all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting in any way
from, Developer’s performance pursuant to this Agreement including, but not
limited to, Developer’s construction of the Project on the Property and construction
of improvements on the City Site and any injury sustained by any person in
connection with the construction or partial construction of buildings and
improvements on the Property and City Site.
Developer shall indemnify, defend with counsel approved by City, and hold
harmless City and its officers, employees and agents from and against any action
or proceeding to attack, review, set aside, void or annul this Agreement, or any
provision thereof, the environmental documents prepared and approved in
connection with the approval of the Project, or any Project Approval or Subsequent
Approval or modifications thereto, or any other subsequent entitlements for the
project and including any related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
18. Operative Date. As described in Subsection 1.9 above, this Agreement shall
become operative on the Operative Date, being the date, the Enabling Ordinance
becomes effective pursuant to Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect for a term of twenty
(20) years commencing on the Operative Date or until one year after the issuance
of the final building permit for occupancy of the last unit of the Project whichever
occurs first, unless said term is amended or the Agreement is sooner terminated
as otherwise provided herein. Expiration of the term or earlier termination of this
Agreement shall not automatically affect any Project Approval or Subsequent
Approval or Building Permit or Final Building Permit that has been granted or any
right or obligation arising independently from such Project Approval or Subsequent
Approval or Building Permit or Final Building Permit.
Upon expiration of the term or earlier termination of this Agreement, the Parties
shall execute any document reasonably requested by any Party to remove this
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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 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.
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
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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 Purchase and Sale Agreement, the Project
Approvals or the Subsequent Approvals, the provision of this Agreement shall
prevail.
29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly
and equally by the Parties, and it shall not be construed against any Party on the
ground that the Party prepared the Agreement or caused it to be prepared.
30. Governing Law and Venue. This Agreement is made, entered into, and executed
in the County of Ventura, California, and the laws of the State of California shall
govern its interpretation and enforcement. Any action, suit or proceeding related
to, or arising from, this Agreement shall be filed in the appropriate court having
jurisdiction in the County of Ventura.
31. Attorneys’ Fees. In the event any action, suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to, or as a result of
any alleged breach of, this Agreement, the prevailing Party shall be entitled to its
reasonable attorneys’ fees and litigation expenses and costs, and any judgment,
order or decree rendered in such action, suit or proceeding shall include an award
thereof.
32. Counterparts. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which constitute one and the same
instrument.
33. Authority to Execute. Developer warrants and represents that to its knowledge as
of the Operative Date and with respect to each entity that is defined as Developer:
(i) it is duly organized and existing; (ii) it is duly authorized to execute and deliver
this Agreement; (iii) by so executing this Agreement, Developer is formally bound
to the provisions of this Agreement; (iv) Developer’s entering into and performance
of its obligations set forth in this Agreement do not violate any provision of any
other agreement to which Developer is bound; and (v) there is no existing or
threatened litigation or legal proceeding of which Developer is aware that could
prevent Developer from entering into or performing its obligations set forth in this
Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Development Agreement
effective as of the Operative Date.
CITY OF MOORPARK
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
JOHN C. CHIU, FLP-N, A FAMILY LIMITED PARTNERSHIP
By:
John C. Chiu, FLP-N
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EXHIBIT “A”
LEGAL DESCRIPTION
LEGAL DESCRIPTION, LOT 1 TRACT 5739
Lots 11, 12, 13, and 14, Tract No. 2 of M. L. Wicks Subdivision of a part of Tract “U” and
addition to Moorpark, in the Rancho Simi, in the City of Moorpark, County of Ventura, State of
California, as per Map recorded in Book 5, Page 37 Miscellaneous Records, in the office of the
County Recorder of said County.
Except for the following four parcels:
PARCEL 1
That portion of said Lot 13 described as beginning at the intersection of the easterly line of said
Lot 13 and the northeasterly line of Walnut Canyon Rod, 40 feet wide, as shown on said map,
said northeasterly line being parallel to and 20 feet northeasterly of the centerline of said Walnut
Canyon Road; thence along the easterly line of said Lot 13;
1. North 00º30’26” East 2.79 feet to a line that lies 2.5’ northeasterly of and parallel with said
northeasterly line of Walnut Canyon Road; thence along said parallel line,
2. North 62º59’34” West 64.09 feet; thence,
3. North 51º33’09” West 13.93 feet; thence,
4. North 59º39’09” West 35.42 feet to the westerly line of said Lot 13; thence along said
westerly line,
5. South 00º30’26” West 8.19 feet to said northeasterly line of Walnut Canyon Road; thence
along said northeasterly line,
6. South 62º59’34” East 110.69 feet to the intersection of the easterly line of said Lot 13 and
said northeasterly line of Walnut Canyon Road, said intersection being the point of
beginning of this description.
PARCEL 2
That portion of said Lot 12 described as beginning at the intersection of the northeasterly line of
Walnut Canyon Road, 40 feet wide, as shown on said map, and the westerly line of said Lot 12;
thence along said northeasterly line of Walnut Canyon Road,
1. South 62º59’34” East 1.44 feet; to the northerly line of Everett Street, 50 feet wide, as
shown,
but not labeled “Everett Street” on said Map, said northerly line being parallel to and 25 feet
northerly of the centerline of said Everett Street; thence along said northerly line,
2. South 89º27’24” East 5.67 feet; thence,
3. North 63º12’21” West 7.76 feet to a point in said westerly line, that is distance 2.50 feet
northeasterly, measured at right angles from said northeasterly line of Walnut Canyon Road;
thence,
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4. South 0º30’26” West 2.79 feet to the intersection of said northeasterly line of Walnut
Canyon
Road and the westerly line of said Lot 12, said intersection being the point of beginning of
this description.
PARCEL 3
That portion of said Lot 14 described as follows:
Beginning at the northeast corner of said Lot 14; thence along the north line thereof,
1. West 100 feet to the northwest corner thereof; thence along the west line thereof,
2. South 16 feet to a point; thence,
3. Northeasterly in a direct line to the point of beginning.
PARCEL 4
The southwesterly 10.00 feet of said Lot 14, as conveyed to the State of California by deed
recorded November 10, 1994 as Instrument 94-182298 of Official Records.
Also except that portion of Lot 14 lying within Wicks Road as described in Book 894, Page 399
in the office of said County Recorded
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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:
John C. Chiu, FLP-N, a Family Limited Partnership
1001 Newbury Road
Newbury Park, CA 91320-6434
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EXHIBIT “C”
LOCATION OF AFFORDABLE UNITS
573