HomeMy WebLinkAboutAGENDA REPORT 2022 1019 CCSA REG ITEM 08BCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of October 19, 2022
ACTION APPROVED STAFF
RECOMMENDATION, INCLUDING
INTRODUCTION OF ORDINANCE NO.
509. (ROLL CALL VOTE: UNANIMOUS)
BY A. Hurtado.
B. Consider an Ordinance for the Second Amendment to the Development
Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark
Owner, L.P., and an Amended and Restated Affordable Housing Agreement, and
Making a Determination of Exemption Pursuant to the California Environmental
Quality Act in Connection Therewithin, on the Application of Dan Johnson of Danco
Communities (on Behalf of Essex Moorpark Owner L.P.). Planning Commission
Recommendation: Open the public hearing, accept public testimony, and close the
public hearing; and 2) Introduce Ordinance No.509 approving the Second
Amendment to Development Agreement between the City of Moorpark and Essex
Moorpark Owner L.P. for first reading, waive full reading, and place this ordinance
on the agenda for November 2, 2022, for purposes of providing second reading
and adoption of the ordinance. (Staff: Shanna Farley, Principal Planner) (ROLL
CALL VOTE REQUIRED)
Item: 8.B.
Item: 8.B.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Shanna Farley, Principal Planner
DATE: 10/19/2022 Regular Meeting
SUBJECT: Consider an Ordinance for the Second Amendment to the
Development Agreement No. 2012-03 between the City of Moorpark
and Essex Moorpark Owner, L.P., and an Amended and Restated
Affordable Housing Agreement, and Making a Determination of
Exemption Pursuant to the California Environmental Quality Act in
Connection Therewithin, on the Application of Dan Johnson of Danco
Communities (on Behalf of Essex Moorpark Owner L.P.)
PROJECT DESCRIPTION AND BACKGROUND
On September 19, 2022, Dan Johnson (Applicant), for Danco Communities (on behalf of
Essex Moorpark Owner, L.P.), submitted a request to amend the terms of a Development
Agreement (DA) between the City of Moorpark (City) and Essex Moorpark Owner, L.P.
(Essex), related to a previously approved 200-unit multi-family apartment project located
at 150 Casey Road, referred to now as Vendra Gardens. The First Amendment to the
DA and this request were considered by an ad hoc committee consisting of
Councilmembers Castro and Groff. The ad hoc committee was appointed on April 7,
2021. The request also includes an Amended and Restated Affordable Housing
Agreement (ARAHA), which is included in the proposed Second Amendment to the DA
(Attachment 1). The Applicant has requested the following amendments to the DA:
•Allow use of income-restricted rental rates published by California Tax Credit
Allocation Committee (TCAC), as opposed to the California Department of Housing
and Community Development (HCD) in the DA and ARAHA (recommended by ad
hoc); and,
•Change in the income-restricted unit mix percentages in the DA and ARAHA
(recommended by ad hoc); and,
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•Change Section 2 of the DA to extend the October 29, 2022, date set forth therein
to December 31, 2022 (recommended by ad hoc) and to correct an incorrect
reference from Condition 16 to Condition 17; and,
•Revise Section 10 to correct the description of the City Site which is to be conveyed
to the City as part of the Project (recommended by ad hoc); and,
•Attach an exhibit to show the form and content of the “Offsite Improvement
Performance and Payment Bond” (recommended by ad hoc); and,
•Remove the requirement to relocate or underground utility facilities from the DA
(not recommended by ad hoc).
These requests are discussed further within the Discussion section below.
“Vendra Gardens” Apartments Project Background and Past Amendment
On October 1, 2012, the Essex Property Trust, Inc. filed an application for Residential
Planned Development Permit No. 2012-02 (RPD) and DA No. 2012-03 for the
construction of a 200-unit apartment project. Earlier entitlements, for a similar project at
the site, had since expired. The earlier DA was not executed. On March 1, 2017, the
City Council adopted Resolution No. 2017-3582 approving the RPD. On March 1, 2017,
the City Council approved the AHA for the Project (Attachment 4). On March 15, 2017,
the City Council adopted Ordinance No. 443 approving the DA (Attachment 2).
On June 7, 2021, an application was filed by Essex Moorpark Owner, L.P. to request the
First Amendment to the DA. On September 15, 2021, the City Council adopted Ordinance
No. 490 approving the First Amendment to the DA (Attachment 3). The request included:
change the approved-residential project to be fully affordable; and finance certain City
development impact fees in the form of a 55-year residual loan.
DISCUSSION AND ANALYSIS
Danco Communities is in escrow to acquire the property and Project from Essex
Moorpark Owner, L.P. The approved Project will include only affordable units (as
previously approved by the First Amendment to the DA). The potential new owner has
applied for additional low-income housing tax credits and tax-exempt bonds to fund the
construction of the Project, which require that the income limits of the units be adjusted
to meet different thresholds. In addition, the applicant has identified numerous project
costs that impact the feasibility of the Project, including increasing construction and
supply costs, rising interest rates, and other market conditions. The requested
amendments to the DA, which are outlined in more detail in the ARAHA attached to the
DA, are intended to make the project more feasible to construct and align with funding
requirements.
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The following changes are requested as part of the Second Amendment to the DA
(Attachment 1, Exhibit A) and the attached ARAHA:
•Replaces the use of HCD rent limits currently outlined in the AHA and instead uses
TCAC rent limits which are applicable to low-income housing funded by Low
Income Housing Tax Credits and projects financed with tax-exempt housing bonds
based on information published by HUD (“TCAC Rents”); and
•Changes the number of income restricted units as shown below. A complete unit
mix breakdown is included in the proposed ARAHA.
Income Limits
Approved
Unit Mix
Approved Mix
Percentage
Proposed
Unit Mix
Proposed Mix
Percentage
Extremely Low 20 10% 21 11%
Very Low 40 20% 48 24%
Low 138 69% 129 65%
Above Moderate
(Manager Units) 2 1% 2 1%
•Change the effectiveness deadline, which was originally required by October 29,
2022, to December 31, 2022. The change would allow the applicant additional
time to satisfy the terms of the DA associated with the purchase of the property,
recording the ARAHA, the execution and recording of the deed of trust, and the
conveyance of the City Site property to the City. In addition, the change would
also correct an incorrect reference to Condition 16, which should reference
Condition 17.
•Revision to the first paragraph of Section 10 of the First Amendment to the DA,
correcting a description and attachments associated with the property to be
conveyed to the City as part of the Project.
•Attaching an exhibit showing the form and content of the “Offsite Improvement
Performance and Payment Bonds”, as part of the First Amendment to the DA.
The proposed rental rate changes to the project are consistent with the intent of the
original Project entitlements but allow the applicant to take advantage of additional
funding sources. The changes would result in a higher level of affordability for residents
than previously approved, providing an improved benefit to the community. Although the
same number of units would be constructed, the unit mix is proposed to include a higher
number of lower income units than previously considered. The Project would therefore
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help the City progress to meeting the Regional Housing Need Allocation (RHNA) which
stipulates that a certain number of housing units be constructed and available to a variety
of income qualified households, described further below.
The applicant also requested to remove provisions of the DA which require the existing
powerlines on the property to be undergrounded or relocated, as identified in Section 10
of the DA (Attachment 3). The DA ad hoc committee which reviewed the request consists
of Councilmembers Castro and Groff, considered the request, but did not support the
applicant’s request to modify the requirement to underground or relocate the onsite power
poles. The relocation and undergrounding of utility lines and poles was determined to be
both a community and site benefit. In addition, no other residential project in the City has
been approved to allow utility poles to remain on private property through a project site.
The DA also includes two revisions to clarify information in the previously approved First
Amendment to the DA. These two revisions include no substantiative changes to the
intent of the DA. First, revisions to Section 10 of the First Amendment to the DA include
a revised description of the City Site which would be conveyed to the City as part of the
Project and would allow utilities and right-of-way improvements along High Street. The
revised text would replace the previous text in paragraph one of Section 10. The revised
text also includes a new exhibit to show the revised plan. Second, an example of an
“Offsite Improvement Performance and Payment Bonds” is also included to show the form
and content of the eventual bond.
The applicant has requested additional time to allow the relocation of the power poles to
occur. Section 6.26 of the amended DA requires that the Developer “…make
commercially reasonable best efforts to relocate and underground the existing overhead
Southern California Edison (“Edison”) 66kV utility lines and poles (“Utility Facilities”)
located on the Property and the City Site at is sole cost and expense no later than thirty-
six (36) months following acquisition of the Property by the Affordable Housing
Developer.” In acknowledgement of the time and tasks associated with Edison process
and engineering work, an extension of time has been granted to extend this timeframe to
sixty (60) months. It is likely that the project will be complete within that timeframe, posing
some risk to the City in ensuring this work is completed. Therefore, a requirement to
provide a bond equivalent to the cost of the work to the City has been added to the DA
which provides surety that the work will be performed.
The Applicant has submitted building plans for at-risk permit review to achieve various
deadlines related to funding requirements. The plans include minor changes to
architectural elements of the Project to be considered by the Community Development
Director. Such changes include the removal of garage doors, addition of solar panels,
relocation of an emergency access road, and other minor site revisions. Should more
comprehensive changes be proposed, further review by the Planning Commission and
City Council may be required.
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General Plan Consistency
The General Plan land use designation of the Project site is Very High Density Residential
(VH). The VH land use designation is intended for residential development characterized
by multi-family attached units, including apartment and condominium buildings. It is
intended that this category utilize innovative site planning, provide on-site recreational
amenities, and be near major community facilities, business centers and major arterials.
The land use designation of VH allows a maximum density of 15 dwelling units per acre;
however, through negotiation of the DA, the Project was approved at a gross density of
18.9 dwelling units per acre with the provision of affordable housing. The proposed
amendments to the DA would not change the density of the approved project.
The amendments to the Development Agreement for the approved Project are consistent
with the existing General Plan land use designation. In addition, the Project remains
consistent with the General Plan goals and policies identified below:
Housing Element Goals and Policies
•GOAL 2: Provide residential sites through land use, zoning and specific plan
designations to provide a range of housing opportunities.
Policy 2.2: Ensure residential sites have appropriate public services, facilities,
circulation, and other needed infrastructure to support development.
•GOAL 3: Expand and protect housing opportunities for lower income households
and special needs groups.
Policy 3.4: Require, in aggregate, 10% of new units to be affordable to lower
income households. Establishing priority for usage of in-lieu fee is as follows: 1st
priority – production of affordable housing; 2nd priority – subsidy of affordable
housing; 3rd priority – housing rehabilitation; 4th priority – housing assistance; and
5th priority – staffing costs.
Land Use Element Goals and Policies
•GOAL 3: Provide a variety of housing types and opportunities for all economic
segments of the community.
Policy 3.3: Where feasible, inclusionary zoning shall be used to require that a
percentage of new, private residential development be affordable to very low to
moderate income households.
•GOAL 5: Develop new residential housing which is compatible with the character
of existing individual neighborhoods and minimizes land use incompatibility.
Policy 5.1: Multiple-family dwellings shall be developed in close proximity to
employment opportunities, shopping areas, public parks, and transit lines, with
careful consideration of the proximity to and compatibility with single-family
neighborhoods.
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In addition, to the Project’s conformance with the Goals and Policies of the General Plan,
the development will also provide the City with affordable housing units required by the
General Plan Housing Element and HCD. A summary of the City’s current (6th Cycle,
2022-2029) RHNA obligation, and the impacts of the approved development are outlined
in the following table:
Housing Type by
Income Level
RHNA Required for 2022-2029 Vendra Gardens as Modified
Very Low Income 377 Units
198 Units* Low Income 233 Units
Moderate 245 Units
Above Moderate 434 Units 2 Units (Managers)
Totals: 1,289 Units Required 200 Approved Units
*198 units included with the project will be provided at varied income levels
between extremely-low to moderate. Actual allocation to specific income
categories will be determined based on the proposed TCAC rent calculations,
with the application the RHNA income limits.
Zoning Consistency
The zoning designation of the subject property is Residential Planned Development
(RPD). The purpose of the RPD zone is to provide areas for communities to be developed
using modern land planning and unified design techniques. The amendments to the
Development Agreement and the approved Project are consistent with the RPD zone in
that the project would continue to provide housing as part of a planned development within
a residential area.
ENVIRONMENTAL DETERMINATION
Pursuant to the California Environmental Quality Act, the City Council adopted a Mitigated
Negative Declaration (MND) on July 18, 2007, that analyzed the environmental impacts
associated with development of the Project. The MND determined that there are no
significant impacts with the inclusion of specific mitigation measures identified in the MND
Mitigation Monitoring and Reporting Program. The proposed amendments to the DA and
AHA do not present any additional environmental impacts. Therefore, the Project remains
consistent with the previously-adopted MND and no further environmental documentation
is required.
PLANNING COMMISSION RECOMMENDATION
On October 11, 2022, the Planning Commission considered the request for the Second
Amendment to the DA including the ARAHA and conducted a public hearing to consider
the requests. The Planning Commission received a presentation from the applicant and
received no other public comments. The Planning Commission requested clarification on
the new affordability requirements outlined in the request and background on the request
to waive the utility undergrounding or relocation requirement in the DA. Following
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deliberation, the Planning Commission unanimously voted to adopt Resolution No. PC-
2022-682 (Attachment 5) recommending the City Council consider an ordinance
approving the amendments to the DA and ARAHA as recommended by the ad hoc
committee. Although not a part of their formal motion, the Planning Commission during
their deliberation, expressed varying opinions on the utility undergrounding or relocation
requirement in the DA and suggested the City Council thoughtfully consider the quality of
life of the residents of the Project, future impacts the City Site, and overall feasibility and
costs of the requirement in considering the request.
NOTICING
Public Notice for this meeting was given consistent with Chapter 17.44.070 of the Zoning
Ordinance as follows:
1.Publication. The notice of the public hearing was published in the Ventura County
Star on October 7, 2022.
2.Mailing. The notice of the public hearing was mailed on October 7, 2022, to owners
of real property, as identified on the latest adjusted Ventura County Tax Assessor
Roles, within one thousand (1,000) feet of the exterior boundaries of the assessor’s
parcel(s) subject to the hearing.
3.Sign. One 32 square-foot sign was placed on the street frontage on October 7,
2022.
PROCESSING TIME LIMITS
Time limits have been established for the processing of development projects under the
Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the
Subdivision Map Act (Government Code Title 7, Division 2), and the California
Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13,
and California Code of Regulations, Title 14, Chapter 3). However, because the subject
application includes a legislative action to amend a Development Agreement, it is not
subject to the provisions of the Permit Streamlining Act.
FISCAL IMPACT
There are no fiscal impacts associated with this request.
COUNCIL GOAL COMPLIANCE
This action is consistent with Goal 1 of the City Council Goals and Objectives – “Identify
Options and Solutions to Barriers for Housing for All Economic and Age Ranges.”
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PLANNING COMMISSION RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1.Open the public hearing, accept public testimony, and close the public hearing;
and
2.Introduce Ordinance No.___ approving the Second Amendment to Development
Agreement between the City of Moorpark and Essex Moorpark Owner, L.P. for first
reading, waive full reading, and place this ordinance on the agenda for
November 2, 2022, for purposes of providing second reading and adoption of the
ordinance.
Attachment 1: Draft Ordinance No. ___
Exhibit A: Second Amendment to Development Agreement No. 2012-03
(Including Draft Amended and Restated Affordable Housing Agreement)
Attachment 2: Development Agreement No. 2012-03
Attachment 3: First Amendment to Development Agreement No. 2012-03
Attachment 4: Affordable Housing Agreement with Essex Moorpark Owner, L.P.
Attachment 5: Resolution No. PC-2022-682
(Exhibits excluded, are included as part of Attachment 1)
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ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING THE SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN
THE CITY OF MOORPARK AND ESSEX MOORPARK
OWNER, L.P., AND AN AMENDED AND RESTATED
AFFORDABLE HOUSING AGREEMENT, AND MAKING A
DETERMINATION OF EXEMPTION PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT IN
CONNECTION THEREWITH
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on July 18, 2007, the City Council adopted Resolution No. 2007-2611,
adopting a Mitigated Negative Declaration, and approving General Plan Amendment No.
2004-05 for a change of land use designation from Specific Plan 9 (SP-9) – School
Overlay to Very High Density Residential (VH); and
WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public
hearing and adopted Resolution No. 2017-3582 approving Residential Planned
Development Permit No. 2012-02 for the construction of a 200-unit apartment complex
and associated site improvements on approximately 11.66 acres located at 150 Casey
Road, and adopted a Mitigated Negative Declaration from a previous project, Residential
Planned Development Permit No. 2012-02; and
WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443,
approving Development Agreement (DA) No. 2012-03 by and between the City of
Moorpark and Essex Moorpark Owner, L.P. in association with Residential Planned
Development Permit No. 2012-02; and
WHEREAS, on June 7, 2021, an application was filed to amend the terms of the
Development Agreement between the City of the Moorpark and Essex Moorpark Owner,
L.P.; and
WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490
approving the First Amendment to Development Agreement No. 2012-03; and
WHEREAS, on September 19, 2022, an application was filed to amend the terms
of the Development Agreement between the City of the Moorpark and Essex Moorpark
Owner, L.P.; and
ATTACHMENT 1
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Ordinance No. ___
Page 2
WHEREAS, at a duly noticed public hearing on October 19, 2022, the City Council
considered the Second Amendment to the DA, including an Amended and Restated
Affordable Housing Agreement (ARAHA) and public testimony related thereto; and
WHEREAS, the City Council has considered all points of public testimony relevant
to the Second Amendment to the Development Agreement and has given careful
consideration to the content of the Second Amendment to the DA, and has reached a
decision on the matter; and
WHEREAS, the Community Development Director has determined that this
project, as amended, is consistent with the environmental determination that was
previously-approved for Residential Planned Development Permit No. 2012-02.
Therefore, no further environmental documentation is required.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
ORDAIN AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTATION: The City Council concurs
with the Community Development Director that the First Amendment to the Development
Agreement is consistent with the Mitigated Negative Declaration adopted for Residential
Planned Development Permit No. 2012-02.
SECTION 2. The City Council of the City of Moorpark does hereby find as follows:
A. The provisions of the Second Amendment to the Development Agreement
are consistent with the General Plan in that it will help achieve the goals of
the Land Use Element and Housing Element and is consistent with the
goals and policies of all other elements.
B. The provisions of the Second Amendment to the Development Agreement
and the assurances that said agreement places upon the project are
consistent with the provisions of Chapter 15.40 of the Moorpark Municipal
Code because the Development Agreement, First Amendment, and Second
Amendment contain the elements required by Section 15.40.030 and shall
be processed through a duly-noticed public hearing process as required by
law.
SECTION 3. The City Council hereby adopts the Second Amendment to the
Development Agreement attached hereto and incorporated herein (Exhibit A) between
the City of Moorpark, a municipal corporation, and Essex Moorpark Owner, L.P. and the
City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be
recorded with the County Recorder no later than ten (10) days after the City enters into
the development agreement pursuant to the requirements of Government Code Section
65868.5.
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Ordinance No. ___
Page 3
SECTION 4. 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 be declared invalid or unconstitutional.
SECTION 5. This ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said 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 __ day of ___________, 2022.
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
Exhibit A – Second Amendment to Development Agreement with attachments
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12853-0092\2729176v7.doc
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 §§ 6103, 27383 and 27388.1
of the California Government Code
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
ESSEX MOORPARK OWNER, L.P.
Ordinance No. ___
Page 4 EXHIBIT A
75
-1-
12853-0092\2729176v7.doc
SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (“Amendment”)
is dated as of ___________, 2022, and is entered into by and between the CITY OF
MOORPARK, a municipal corporation (“City”), and ESSEX MOORPARK OWNER, L.P.,
a California limited partnership (“Developer”).
RECITALS
WHEREAS, the City and Developer entered into that certain Development
Agreement dated April 17, 2017, which was recorded on April 17, 2017 as Document No.
20170417-00050720-0 in the Official Records of Ventura County, California, and
amended it by a First Amendment of Development Agreement (“First Amendment”) dated
August 2, 2022 which was recorded on August 4, 2022 as Document No. 2022-
000082017 in such Official Records (as amended, the “DA”);
WHEREAS, Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to hereinafter as the
"Property"); and
WHEREAS, City and Developer desire to amend the DA to modify certain portions
of the Amended and Restated Affordable Housing Agreement that was attached as
Exhibit D to the First Amendment of Development Agreement, extend the date for
satisfying certain conditions as set forth herein and make certain corrections to the First
Amendment and its exhibits.
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendments.
a. Section 2 of the First Amendment is hereby amended to change the
cross reference of “Section 16” that is contained the rein to “Section 19”
and to extend the October 29, 2022 date set forth therein to December
31, 2022.
b. The first paragraph of Section 10 of the First Amendment is hereby
deleted in its entirety and revised to read as follows:
“Conveyance of Land for Street Widening; Relocation and
Undergrounding of SCE Lines. Substantially concurrently with
the conveyance of the Property to Affordable Housing Owner
(i.e. immediately after such conveyance), and subject to the
issuance of a reasonable owners title policy to City at the cost
of the Affordable Housing Owner, Affordable Housing Owner
shall, in order to enable the City to widen High Street, convey to
Ordinance No. ___
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the City by grant deed the ‘City Site’ as described on Exhibit B
to the First Amendment.”
c. The last paragraph of Section 10 of the First Amendment is hereby
deleted in its entirety and revised to read as follows:
“In connection with the development of the Project, Developer
shall make commercially reasonable best efforts to relocate and
underground the existing overhead Southern California Edison
(“Edison”) 66kV utility lines and poles (“Utility Facilities”) located
on the Property and the City Site at its sole cost and expense no
later than sixty (60) months following the acquisition of the
Property by the Affordable Housing Developer. The Developer
and City acknowledge that Edison shall determine the location
and path of the underground Utility Facilities in compliance with
Edison regulations and state law, and in the event that the hard
costs (not soft cost, including without limitation project
management fees and costs, and design, engineering and
administrative fees and costs) of undergrounding the Utility
Facilities on the City Property exceeds $500,000, Developer
shall not be required to underground the Utility Facilities on the
City Site and Developer shall instead relocate the Utility
Facilities as set forth in the Utility Facility redesign by BJ Palmer
& Associates and depicted on Exhibit “J” attached hereto (the
“Revised Plan”) and Developer shall pay $400,000 t o the City
within thirty (30) days after completion of the relocation of the
Utility Facilities on the City Site. Developer shall obtain Offsite
Improvement Performance Bond and Payment Bond in form and
content in substantial compliance with the forms attached hereto
as Exhibit K to the First Amendment with any modifications to
such forms subject to acceptance by the City Manager, to
secure both the completion of the Revised Plan by Developer
and the payment to the City of the $400,000 described in this
Section in connection with the relocation of the Utility Facilities
herein.”
d. Exhibit A (Legal Description of Property) to the First Amendment is
hereby deleted and replaced in its entirety with Exhibit A to this Second
Amendment.
e. Exhibit D to the First Amendment is hereby deleted and is replaced in
its entirety with the Amended and Restated Affordable Housing
Agreement attached as Exhibit “B” to this Second Amendment (which
contains altered provisions).
f. Exhibit F to the First Amendment is hereby deleted and replaced in its
entirety to with Exhibit “C” to this Second Amendment.
Ordinance No. ___
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g. The form and content of the Offsite Improvement Performance and
Payment Bonds which are to be Exhibit K of the First Amendment are
attached as Exhibit “D” hereto.
2. Counterparts. This Amendment may be executed and recorded in
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
3. Except as amended herein, all other provisions of the DA shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed the day and year first above written.
DEVELOPER:
ESSEX MOORPARK OWNER, L.P.
a California limited partnership
By: Essex Moorpark GP, L.P.
a California limited partnership
Its: General Partner
By: Essex Management Corporation
a California corporation
Its: General Partner
By: _____________________
Name: _____________________
Title: _____________________
CITY:
CITY OF MOORPARK,
a municipal corporation
By:
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
Ordinance No. ___
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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A-1
EXHIBIT “A”
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
(Replaces Exhibit A to First Amendment)
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005 -04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721 -0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503 -
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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A-2
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
EXCEPT AS TO A PORTION OF SAID LAND AL L OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OF FICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT , IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005 -03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503 -0108315 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430 -00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
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82
A-3
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020-275
Ordinance No. ___
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B-1
EXHIBIT “B”
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
“AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT”
(Exhibit D to First Amendment)
(Attached.)
Ordinance No. ___
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B-2
Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER’S USE
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
MOORPARK CASEY ROAD LP
Dated as of ___________, 2022
Ordinance No. ___
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B-3
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this
“Agreement”) is to be effective as of ________________________, 2022, regardless of
the date of actual execution hereof, and is entered into by and between the CITY OF
MOORPARK, a municipal corporation (“City”), and Moorpark Casey Road LP, a California
limited partnership (“Owner”), and shall upon the recordation hereof, supersede and
replace that certain Affordable Housing Agreement between the City and Essex
Moorpark Owner, L.P. (“Essex”) dated April 17, 2017 which was r ecorded on
April 17, 2017 as Instrument Number 20170417 -00050721-0 1/67 in the Official
Records of Ventura County, California and was assigned to Owner pursuant to that
certain Assignment and Assumption Agreement dated _______________, 2022
(“Assignment Agreement”).
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417 -00050720-0 in the Official Records
of the County of Ventura on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated August 2, 2022 recorded on August 4,
2022, as Instrument Number 2022000082017 1/96 pages in the Official Records of
Ventura County , California, and was assigned to the Owner pursuant to the Assignment
Agreement (the “Development Agreement”) pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager’s units) on approximately 10.57 acres (the “Property”), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 (“GPA 2004-05”) Residential
Planned Development Permit No. 2012 -02 (“RPD”), and Zone Change No. 2004-04
(“ZC”) provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the “Project”). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively refe rred to as the
“Project Approvals”.
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as d escribed on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
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B-4
apartment units (i.e., 198 of the 200 units) in the Project will be restricted by a federal tax
credit regulatory agreement; such units being described on Exhibit No. 2 attached hereto
by income level and bedroom count. Two units will be manager’s units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
“Affordable Rent” shall mean the rent described in Section 2.9, subject to Section
2.10.
“Affordable Units” shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
“Agreement” shall mean this Revised Amended and Restated Affordable Housing
Agreement.
“City” shall mean the City of Moorpark, California, a municipal corporation.
“County” shall mean Ventura County.
“County Median Income” shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by the California Tax Credit
Allocation Committee (CTCAC), or if CTCAC discontinues such publication, then such
reasonable replacement publication as may be selected by City in good faith.
“Density Bonus” shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
“Development Agreement” shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on April 17, 2017, which has been amended by a First Amendment to
Development Agreement dated August 2, 2022, and recorded as Instrument No.
2022000082017 Pages 1/96 in the Official Records of the County of Ventura.
“Extremely Low Income” shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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B-5
“Extremely Low Income Household” or “Extremely Low Income Tenant” means
individuals or households qualified on the basis of a “certification of tenant eligibility” as
certified by such individual or household, who have a gross income which does not
exceed Extremely Low Income, adjusted for household size.
“Extremely Low Income Units” means Units rented to Extremely Low Income
Households.
“HCD” shall mean the Department of Housing and Community Development
(HCD) of the State of California.
“Initial Rent-Up” shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and “Stabilization” (as defined below).
“Low Income” or “Lower Income” shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit.
“Low Income Household” or “Lower Income Household” or “Low Income Tenant”
means individuals or households qualified on the basis of a “certification of tenant
eligibility” as certified by such individual or household, who have a gross income w hich
does not exceed Low Income, adjusted for household size.
“Low Income Units” means Units rented to Low Income Households.
“Owner” shall mean Moorpark Casey Road LP and any permitted assignee of its
rights, powers and responsibilities, or any successor in interest to any portion of or interest
in the Project or Property.
“Project” is the residential development described in RPD 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functio nally related and subordinate
facilities, and all improvements required by the Project Approvals.
“Project Approvals” is defined in Recital B above.
“Property” shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
“Stabilization” shall mean the time at which the Project achieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
“Term” shall mean from the date of recordation of this Agreement until the later of:
(i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a “non-conforming use” and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
Ordinance No. ___
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B-6
“Units” shall mean residential dwelling units.
“Utility Allowance” shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
“Very Low Income” shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
“Very Low Income Household” means individuals or households qualified on the
basis of a “certification of tenant eligibility” as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
“Very Low Income Units” means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words “hereof,” “herein,” “hereunder,” and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, “Affordable
Housing Financing”) to finance the Project, and, although not
Ordinance No. ___
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B-7
enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager’s units) for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the “Compliance Period and
Extend Use Period”) and applicable to the tax exempt bonds (the
“Qualified Project Period”).
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to
be recorded in the Office of the County Recorder of Ventura County, California
concurrently with the closing of the Project Financing, and Owner shall ensure that this
Agreement shall be senior in priority to any lien, encumbrance or other matter of record
except for property taxes and assessments not yet due and existing easements
necessary for the operation of the Project or as otherwise expressly approved in writing
by City. The Owner shall pay all fees and charges in connection with any such
recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Af fordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solar ready,
water heater, built-in oven, microwave, stove, bathroom fan, doors and door hardware,
and floor and window coverings.
Owner agrees not to convert the Project or any part thereof to any type of
common interest development, for-sale condominiums, community apartments, planned
development, stock cooperative, hotel, motel, or any type of congregate care or assisted
living facility. Owner agrees that they shall not knowingly permit any of the Units in the
Project to be used on a transient basis and shall not rent any Unit for a period of less than
thirty (30) days. At no time shall any of the Affordable Units be rented to an employee,
agent, officer, contractor of any owner of any portion of the Property or Project or of any
company affiliated with any such owner, or to any such affiliated company.
2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and approved by City which app roval shall not be unreasonably
withheld, conditioned, or delayed (“Rules”). Owner shall submit such Rules to City during
the Initial Rent-Up for the City’s approval, which will not be withheld, conditioned or
delayed. Annually, Owner shall submit any amendments, modifications or changes to
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B-8
such Rules to the City at least forty-five (45) days prior to their proposed effective date
and all of such amendments, modifications and changes shall be subject to the City’s
prior written consent, which will not be withheld, conditioned or delayed. If City does not
consent, City shall specify the reasons in writing so that Owner can revise the
amendment(s), modification(s) or change(s) and re-submit them for City approval, which
will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as amended,
remain in effect (with a copy of the Rules and any amendments). If applicable, this
Agreement shall be consistent with any Extended Use Agreement entered into between
Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. All of the Affordable Units shall be and remain owned by the
Owner for the term of this Agreement. No Affordable Unit may be sold separately.
2.7 Affordable Units Generally.
2.7.1 Accessible Compliant Units. Four (4) Affordable Units shall be
compliant with all laws regarding disabled persons (including, without limitation, the
Americans with Disabilities Act) and shall be reserved for and occupied by persons
eligible for such accommodations. Owner shall maintain a waiting list for the affordable
accessible-compliant units, shall promptly deliver a copy thereof to City and shall
thereafter deliver a copy of the revised list to City whe never the list changes. Should
there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner shall add such prospective
tenant to the waiting list for the affordabl e accessible-compliant units. At the earliest
possible time an Extremely Low or Very Low or Low Income non -accessible compliant
affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy the
accessible compliant unit. Owner shall include a provision in the non -accessible
compliant affordable lease for any accessible-compliant affordable unit that the non-
accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at
Owner’s cost, as soon as a non-accessible compliant unit becomes available. While any
of the four (4) affordable accessible-compliant units are not being leased to disabled
persons (due to unavailability of such persons to lease), the applicable Affordable Unit
shall be leased in accordance with this Agreement.
At all times, Owner shall keep City informed in writing of the income level applicable
to each accessible compliant unit.
The accessible compliant units shall be consistent with accessibility design criteria
established by the State of California, and Owner shall promptly make any changes to
such units required by new laws or changes in laws. Reasonable accommodation shall
be made, as may be requested by specific Extremely Low or Very Low or Low Income
disabled tenants in such units, to provide features such as smoke alarms with flashing
lights, for instance, if requested by hearing impaired Extremely Low or Very Low or Low
Income tenants in an accessible compliant unit.
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2.7.2 [Intentionally Deleted].
2.7.3 Preference Policies. To the extent permitted by applicable state and
federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next eligible
households to fill the vacancies allowing for priority for City of Moorpark residents to the
extent permitted by applicable state and federal law. Details of this process shall be
submitted in writing to the City for review and approval prior to the issuance of the first
building permit for this project. Additionally, Owner shall submit to City an annual report,
no later than January 30 of each calendar year for the pervious calendar year, describing
the vacancies filled from households on the list, total vacancies filled and the num ber of
households on the list.
2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will
advise City on a quarterly basis in writing of the number of Affordable Units in the entire
Project occupied by Extremely Low or Very Low or Low Income Tenants b y delivery of a
certificate in the form specified by the City, which is attached hereto as Exhibit No. 3,
which shall include a statement as to whether or not the tenant was a City of Moorpark
resident who on the waiting list and was given priority. Any reporting schedule less
frequent than quarterly must be expressly approved in writing by the City Manager.
2.7.5 Unit Classification. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely
Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy
by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an
Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other
than for a temporary period (not to exceed 60 days), at which time the classification of the
Unit shall be redetermined (provided that upon such reclassification, Owner must remain
in compliance with this Agreement). Owner shall use commercially reasonable efforts to
prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain
and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3
attached hereto, for each Extremely Low and Very Low a nd Low Income Tenant. Owner
shall make a good faith effort to verify that the income declared by an applicant in an
income certification is accurate by reviewing any one or more of the following documents,
which shall be provided by the applicant:
(a) A pay stub for the most recent pay period;
(b) An income tax return for the most recent tax year;
(c) An income verification form from the applicant’s current employer;
(d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
Ordinance No. ___
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(e) If the applicant is unemployed and has no tax return, another form of
independent verification is needed.
In addition to the above-referenced income certification and subject to fair housing
laws and the rules and regulations of the California Tax Credit Allocation Committee,
eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant
units shall submit a letter from a physician or other document acceptable to the City and
Owner which confirms the accessibility needs of the applicant.
2.7.6 Lease Provisions. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, the Owner shall include pro visions in all
signed leases or rental agreements for all Affordable Units which authorize the Owner to
immediately terminate the tenancy of any tenant occupying an Affordable Unit where one
or more of such tenants have misrepresented any fact material to the qualification of such
an individual or household as an Extremely Low or Very Low or Low Income Tenant
and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably
enforce such termination rights (i.e., Owner shall exercise them and not waive them).
Each lease or rental agreement for an Affordable Unit shall also provide that the tenants
of such Affordable Unit shall be subject to annual certification or recertification of income,
as required by the City, and shall be subject to rental increases in accordance with Section
2.11 of this Agreement.
2.7.7 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.7.8 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner in writing
of the name and phone number of such staff person and any replacements. On or before
the first day of June of each year during the Term of this A greement, commencing after
the first residential occupancy of the Project, Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the
larger of (a) or (b) below:
(a) The percentage increase in the Consumer Price Index during
the prior year, which shall be determined by using the Consumer Price Index by the U. S.
Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for
the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long
Beach-Anaheim index). The calculation shall be made by copying such CPI for the month
of October to the CPI for the previous October.
(b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City’s Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4).
Ordinance No. ___
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In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to achieve
substantially the same result.
2.7.9 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld, conditioned, or delayed.
If the lease or rental agreement provisions specified in this Section are not approved or
disapproved within thirty (30) days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of marketing,
Owner shall prepare and submit to the City for reasonable approval a market ing and
outreach program which shall contain, among other things, the following: how a potential
tenant would apply to rent a Unit in the Project, including where to apply, applicable
income limits and rent levels; support documentation needed such as pay stubs, tax
returns, or confirmation of disability, if applicable, a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in newspapers of general
circulation, including at least one Spanish-language newspaper and mailing notices of
vacancies to or contacting by telephone potential tenants on the waiting list maintained
by Owner. Notices shall also be given to organizations in Ventura County which provide
referrals or other services to persons with disabilities.
2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy
(including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2
every five (5) years) per day until the Affordable Unit is placed back in service except that
such fee shall not be payable for so long as Owner is diligently attempting to repair or re-
build the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Extremely Low Income households shall be
no greater than thirty percent (30%) of thirty percent (30%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. “Family size
appropriate to the Unit”, as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. “Family size
appropriate to the Unit”, as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Low Income households shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance. “Family size appropriate to
the Unit”, as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California
Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom
unit and 4 persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
“Allowances for Tenant Furnished Utilities and Other Services” (form HUD-52667) based
on Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas – Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or future
prudent refinancing of this project, utilizes definitions, sources of information, etc., other
than those which have been herein defined and utilized in calculating Affordable Rent,
then the procedure or input which produces the lowest affordable rent, will prevail as to
the applicable Affordable Unit restricted by this Agreement.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant’s initial
rental date. This recertification shall be submitted in writing to the City within thirty (30)
days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Me dian
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by an Extremely Low
or Very Low or Low Income Tenant, as the case may be, shall not exceed the allowable
rent calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
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2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Extremely Low Income Units and Very Low Income Units, the following
shall apply:
2.12.1 If, upon income recertification, the Owner determines that the
household income of an Extremely Low Income Tenant has increased above the
maximum allowable household income level of an Extremely Low Income Tenant, but
remains equal to or below that of a Very Low Income household, then, except as provided
below in this Section 2.12, the Owner shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of the County Median Income for the size household
appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to
the occupants thereof. In that event, the next available unit that was previously a Very
Low Income Unit must be rented to (or held vacant and available for immediate occupancy
by) an Extremely Low Income household.
2.12.2 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income level of a Very Low Income Tenant, but remains equal to or
below that of a Low Income household, then, except as provided below in this Sect ion
2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to
such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of sixty
percent (60%) of the County Median Income for the size household appropriate to the
unit (less the utility allowance), upon sixty (60) days written notice to the occupants
thereof. In that event, the next available unit that was previously a Low Income Unit must
be rented to (or held vacant and available for immediate occupancy by) a Very Low
Income household.
Notwithstanding the foregoing, any such Tenant shall have the right to
request a recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction of
income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or
the Qualified Project Period, Owner shall comply with laws and regulations of CTCAC,
CDLAC and any separate/additional recorded restrictions or “Regulatory Agreement”
required by the Affordable Housing Financing and such requirements with respect to over-
income tenants shall prevail.
Owner shall promptly deliver to City copies of all Affordable Housing
Financing regulatory agreements or similar agreements restricting Units in the Project,
and shall notify City and all affected tenants in writing of the expiration of the period at
least one (1) calendar year (but not more than fourteen (14) months) prior to expiration of
the Compliance Period and Extended Use Period or Qualified Project Period, whichever
expires later, of any effect on the affordability level of their Affordable Units.
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Additionally, Owner shall notify City in writing of any re -syndication or
extension of tax credit financing and any defeasance or refinancing of bond financing as
soon as they become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner hereby agrees that specific enforcement of Owner’s
agreements to comply with the allowable rent and occupancy restrictions of this
Agreement is one of the reasons for the City’s issuing the Project Approvals and entering
into the Amendment to Development Agreement.
2.13.2 Owner further agrees that, in the event of any breach of such
requirements, potential monetary damages to City, as well as prospective Extremely Low
and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and
quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner agrees to the
imposition of the remedy of specific performance against it in the case of any event of
default by Owner in complying with the allowable rent, occupancy restrictions or any other
provision of this Agreement. Nothing herein shall impair City’s rights to liquidated
damages under Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner sh all prepare and submit to the City, on a
quarterly basis, written reports, setting forth the rental activity for the previous month, and
the current total number of Affordable Units occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit
to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a
Certificate of Continuing Program Compliance in a form substantially similar to Exhibit
No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the
Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or
held vacant and available for occupancy by such Tenants during said period; and (b) that
to the knowledge of Owner, no default has occurred under the provisions of this
Agreement; and (c) such other information as may be requested in writing by the City
Manager.
2.15.3 Owner shall prepare and submit to the City, on an annual basis, a
report in form and substance reasonably satisfactory to the City, not later than March 31st
of each year for the preceding calendar year, summarizing the vacancy rate of the
Affordable Units in the Project on a month-to-month basis for such calendar year.
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2.15.4 Owner shall also deliver to City from time to time any other
information about the Affordable Units and the rental thereof as may be reasonably
requested in writing by City within ten (10) days after any such written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or a single
third-party management agent with demonstrated ability to operate, and experience in
operating, residential housing including restricted afford able housing, in a manner that
will provide decent, safe and sanitary residential facilities to occupants thereof, including
experience in complying with reporting requirements and occupancy restrictions similar
to those imposed upon the Project by the terms of this Agreement. (There may only be
one manager for the entire Project at any one time.)
3.2.2 The Owner, directly or through an affiliate, may be the “manager” of
the Project. The Owner may retain on-site personnel and other consultants and service
providers to assist Owner to operate the Project effectively and in compliance with the
provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner seeks to appoint a replacement management
entity to manage the Project, they shall advise the City of the identity of any such qualified
management agent not later than thirty (30) days prior to the effective date of such
appointment. The Owner shall also submit such additional information about the
background, experience and financial condition of any proposed management agent as
is reasonably requested by the City.
3.2.4 Upon the City’s written request, the Owner shall cooperate with the
City in an annual review of the management practices and status of Project. The purpose
of each annual review will be to enable the City to determine if the Project is being
operated and managed in accordance with the requirements and standards of this
Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to the
management agent.
3.3.2 There will be regular meetings as necessary between the Owner and
the management agent for the purpose of reviewing policies, procedures, resident
relations and budget control.
Ordinance No. ___
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3.3.3 Owner shall notify the City in writing of the direct phone number a nd
email address of the management agent (so that City may contact the management agent
directly), and shall cause the management agent or its personnel to be available on a
twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing
of management personnel to manage the Project in a prudent and businesslike manner.
In addition, Owner shall provide such security services as may be necessary or
appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal
opportunity guidelines, without regard to race, religion, color, national origin or sex. All
hiring materials will indicate that the Project is an “Equal Opportunity Employer.”
Employment grievances, terminations and promotions will be conducted according to
personnel policies and procedures which conform with equal opportunity laws. All
personnel employed at the Project will receive training specific to Owner’s policies and
procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner hereby waives any rights they might otherwise have to seek
judicial review of such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Pr oject, and on each
anniversary thereof, Owner shall pay to City a single community services fee of Eight
Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual
payments under the City Note (as defined in the Development Agreeme nt).
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the
Project and the Property in good condition and repair and in a prudent and businesslike
manner. If any portion of the Project is damaged, restoration of the damaged
improvements shall be made by Owner to a condition as good as existed prior to the
damage. Owner shall complete promptly and in a good and workmanlike manner any
improvements which may now or hereafter be constructed as part of the Project and pay
when due all claims for labor performed and material furnished therefor. Owner shall
comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions,
and orders of any governmental authority now or hereafter affecting the conduct or
operation of the Project and of their businesses on the Project or any part thereof or
requiring any alteration or improvement to be made thereon. Owner shall maintain
grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any
adjacent areas owned by either of them) in good and neat order and repair. Owner hereby
agrees that City may conduct from time to time through representatives of its own choice
Ordinance No. ___
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who are properly identified as agents of the City, upon reasonable written notice and
subject to reasonable security and safety procedures and rights of tenants in possession,
on-site inspections and observation of such records of Owner relating to the Project and
the Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner’s compliance with the provisions of this Agreement. The Owner shall conduct an
ongoing maintenance program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers’ recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment as
well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and cleaned
regularly and kept free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable City ordinances. The
trash areas will be swept regularly and scrubbed with disinfectant when necessary.
Extermination services will be contracted with to provide pest control consistent with high
quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical inspection,
or as occupancy changes, or as the Owner or the management agent may otherwise
deem necessary.
g. Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the work
has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect for
the Term.
Ordinance No. ___
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ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an “Event of
Default” by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with and observe the
conditions of Project approval, conditions, terms, or covenants of the Development
Agreement or this Agreement, if such failure remains uncured thirty (30) days after written
notice of such failure from the City in the manner provided herein or, with respect to a
default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within ninety
(90) days after the first notice of default is given or such longer period as may be agreed
upon by both parties in writing. If a different period or notice requirement is specified
under any other section of this Agreement, then the specific provision shall control.
6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen
(15) business days after written notice of such default by City.
6.1.3 Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate, or report submitted to the City by Owner
proves to have been incorrect in any material respect when made, if such failure remains
uncured thirty (30) days after written notice of such failure from City to Owner in the
manner provided herein or, with respect to a default that cannot be cured within thirty (30)
days, if the Owner fails to commence such cure within such thirty (30) day period or
thereafter fail to diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's relief law or statute of
the United States or of any state or other jurisdiction which is not dismissed within sixty
(60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the
benefit of creditors of the Owner in bankruptcy or insolvency or for any of its properties
which (or who) is not discharged within sixty (60) days after its appointment; or (d)
directing the winding up or liquidation of the Owner, providing, however, that any such
decree or order described in any of the foregoing subsections shall have continued
unstayed or undischarged for a period of ninety (90) days.
6.1.5 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
of its property, unless the property so assigned, sequestered, attached, or executed upon
shall have been returned or released within ninety (90) days after such event (unless a
lesser time period is permitted for cure hereunder) or prior to sale pursuant to such
sequestration, attachment, or execution. If the Owner is diligently working to obtain a
return or release of the property and the City's interest hereunder is not imminently
Ordinance No. ___
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threatened in the City's reasonable business judgment, then the City shall not declare a
default under this subsection.
6.1.6 The Owner shall have voluntarily suspended its business for a period
of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed
the obligations of Owner in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in th e applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or encumbrance
on the Property (other than the Development Agreement) and all liens and encumbrances
shall be subordinate and subject to this Agreement, regardless of actual date of
recordation. The City shall consider in good faith, reasonable modifications of this
Agreement typically required by secured lenders and commonly known as “mortgagee
protection” provisions; however, in no event shall any such modification shorten the term
of this Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests i n the
Project or the Property, or any part thereof or interest therein (except the lien of any
mortgage, deed of trust or other recorded instrument securing any construction or
permanent financing for the Project, which shall, in any event, be junior and s ubordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty -five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall
deposit with City a bond or other security reasonably satisfactory to City in such amounts
as City shall reasonably require, but no more than the amount required to release the lien
under California law and provided further that Owner shall thereafter diligently proceed to
cause such lien, encumbrance or charge to be removed and discharged, and shall, in any
event, cause such lien, encumbrance or charge to be removed or discharged not later
than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
the preceding sentence, if applicable, then, in addition to any other right or remedy of
City, City may, but shall not be obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or the
Ordinance No. ___
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amount or otherwise giving security for such claim, in such manner as is or may be
prescribed by law. Owner shall, immediately upon written demand thereof by City, pay
to City an amount equal to all costs and expenses incurred by City in connection with the
exercise by City of the foregoing right to discharge any such lien, encumbrance or charge.
To the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other costs
of enforcing the obligations secured hereby including without limitation, recording fees,
receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred
by the prevailing party in connection with the enforcement of this Agreement, whether or
not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner, City shall be entitled to enforce performance of any obligation
of Owner arising under this Agreement and to exercise all rights and power s under this
Agreement or any law now or hereafter in force. Additionally, without limiting any of City’s
other rights or remedies, upon any leasing of a particular Affordable Unit in violation of
this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase
by $2 every five (5) years) per day until the violation has been cured (it being understood
that if the Affordable Unit is unavailable due to material damage or destruction, Section
2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in
addition to enforcement costs and any other damages to which City may be entitled, all
rent charged by Owner in excess of the rental amounts permitted under this Agreement,
with interest thereon from the date paid to Owner until the date paid by Owner to City at
the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner
stipulates, acknowledges and agrees that the amounts described herein are reasonable
estimates of the minimum damages incurred by the City and public as a result of
violation(s), and that actual damage would be impractical or impossible to determine with
accuracy. No remedy herein conferred upon or reserved to City is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy given by this
Agreement to the City may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by the City, and the City may pursue
inconsistent remedies. The City shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the Owner to perform its obligations and
covenants under this Agreement or to enjoin acts or things which may be unlawful or in
violation of the provisions hereof.
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ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner:
Moorpark Casey Road LP
5251 Ericson Way
Arcata, CA 95521
Attn: Chris Dart (cdart@danco-group.com)
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by overnight
messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and a gent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on -site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any defaul t or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to Ci ty in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the co ntrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
(other than pertaining to this Agreement), shall be rendered against Owner, or their assets
(other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein “force majeure” shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any o f their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the e xercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the other party. No waive r of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and su ch wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in equity
as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exerc ise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altere d or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor-in-interest of
such party who has acquired any portion of or interest in the Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property “run with the land”.
7.14 Transfers. Owner shall provide the City with at least thirty (30) days’ prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement . The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Cou rt for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its address for notices
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pursuant to this Agreement. Nothing conta ined herein shall affect the right of the City to
serve process in any other manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
(a) “Hazardous Materials” shall mean:
(1) any “hazardous substance” as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the
California Health and Safety Code at such time;
(2) any “hazardous water,” “infectious waste” or “hazardous
material” as defined in Section 25117, 25117.5 or 25501(j) of the California
Health and Safety Code at such time;
(3) any other waste, substance or material designated or
regulated in any way as “toxic” or “hazardous” in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
(4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
(b) “Hazardous Materials Laws” means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner hereby agrees that:
(a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, s torage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term “Hazardous Materials” shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated b uildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
(b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
(c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost reco very,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as “Hazardous
Materials Claims”); (3) the presence of any Hazardous Materials in, o n or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as “borderzone
property” under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a “Loss”), arising directly or indirectly, in whole or in part, out of (1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occu pying or
present on the Project or the Property, in connection with the handling, treatment,
`removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Propert y. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generati on, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Material s Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7.19.4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Propert y
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor’s liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
(a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then -current limit.
(b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
(c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
(d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it continues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not le ss than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). “Full Insurable Value of the Project” shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a “replacement cost” basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one -half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best’s Insurance Guide, or any successor thereto
(or if there be none, an organization having a national reputation) as hav ing a “Best’s
Rating” of “A” and a “Financial Size Category” of at least “VII” or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies shall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance .
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of “Term” in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the “Developer”
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due t o a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements that
are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner agrees that densities vested
and incentives and concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to which Devel oper is
entitled under the Moorpark Municipal Code, Government Code Sections 65915 through
65917.5 or both Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and includ e all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any fi nal map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second “back-up” district) or one
Assessment District containing two zones (one zone to be fully funded and the other to
be a back up zone), as determined by the City at the City’s discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPD 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any such fees under
protest pursuant to California Government Code Section 66020 and statutes amendatory
or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parking spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner acknowledges the City’s ability to modify the
development standards and to change the General Plan designation and zoning of the
Property upon the termination or expiration of the Development 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 General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City.
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 for storm water/retention purposes for the Project, and City shall execute and deliver
a revocable license agreement to Owner to that effect.
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WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
By:
Print Name:
Title:
OWNER:
MOORPARK CASEY ROAD LP,
a California limited partnership
By: Moorpark Casey Road LLC,
a California limited liability company,
its Administrative General Partner
By: Danco Communities,
a California corporation,
its Manager
By:
Daniel Johnson
President
By: Community Revitalization and
Development Corporation, a
California nonprofit public benefit
corporation, its Managing General
Partner
By:
David Rutledge
President
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State of California )
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity up on behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
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State of California )
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
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EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014 -1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503 -
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
Ordinance No. ___
Page 47
118
B-36
EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014 -1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005 -03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430 -00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
Ordinance No. ___
Page 48
119
B-37
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020-275
Ordinance No. ___
Page 49
120
B-38
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Low Income 51% and Above Utility Allowance
Type
of Unit
Number
of Units
Household Size
Adjustment
1-br 56 2 persons TBD Annually*
2-br 47 3 persons TBD Annually*
3-br 26 4 persons TBD Annually*
Total 129
Very Low Income 31%-50%
Type
of Unit
Number
of Units
Household Size
Adjustment
1-br 16 2 persons TBD Annually*
2-br 14 3 persons TBD Annually*
3-br 18 4 persons TBD Annually*
Total 48
Extremely Low Income 30% and
Below
Type
of Unit
Number
of Units
Household Size
Adjustment
1-br 8 2 persons TBD Annually*
2-br 7 3 persons TBD Annually*
3-br 6 4 persons TBD Annually*
Total 21
Total
Units 198
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
*Utility allowances are determined annually using the U.S. Department of Housing and Urban
Development “Allowances for Tenant Furnished Utilities and other Services” using the
apartment/walk-up unit type, Locality “Area Housing Authority of the County of Ventura, CA”.
Ordinance No. ___
Page 50
121
B-39
The units restricted by this Affordable Housing Agreement, and subject to
the California Health and Safety Code (and related California Code of Regulations)
definitions, rent limits/calculations, and income levels are as follows:
All Extremely Low Income Units (i.e. 21 units); all Very Low Income Units (i.e,
48 units) and twenty-nine (29) of the Low Income Units (consisting of 9 one-
bedroom units; 10 two-bedroom units; and 10 three bedroom units), for a total of
98 units.
Ordinance No. ___
Page 51
122
B-40
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification __________ / Recertification __________ Unit Number ________
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied
for in the above apartment project. Listed below are the names of all persons who intend
to reside in the unit:
1.
Name of Members
Of the
Household
2.
Relationship
to Head of
Household
3.
Age
4.
Social Security
Number
5.
Place of
Employment
Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12 -month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
for a unit is $___________________.1
If this form is being completed in accordance with recertification of an Extremely Low Income Tenant’s or Very Low Income Tenant's
or a Low Income Tenant’s occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a Low Income Unit, respective ly,
this form must be completed based upon the current income of the occupants.
Ordinance No. ___
Page 52
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B-41
Included in the total anticipated income listed above are:
(a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal services;
(b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation of assets used in a
business or profession may be deducted, based on straight line depreciation, as provided
in Internal Revenue Service regulations. Any withdrawal of cash or assets from the
operation of a business or profession will be included in income, except to the extent the
withdrawal is reimbursement of cash or assets invested in the operation by the family;
(c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not b e used as
deductions in determining net income. An allowance for depreciation is permitted only as
authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an
investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net family
assets in excess of $5,000, annual income shall include the greater of the actual income
derived from all net family assets or a percentage of the value of such assets based on
the current passbook savings rate.
(d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that are
received in a lump sum amount or in prospective monthly amounts;
(e) payments in lieu of earnings, such as unemployment and disability compensation,
workers' compensation and severance pay;
(f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the welfare
assistance agency in accordance with the actual cost of shelter and utilities, the amount
of welfare assistance income to be included as income shall consist of:
(1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
(2) the maximum amount that the welfare assistance agency could in fact allow
the family for shelter and utilities. If the family’s welfare assistance is ratably reduced
form the standard of need by applying a percentage, the amount ca lculated under this
paragraph shall be the amount resulting from one application of the percentage;
(g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from persons
not residing in the dwelling;
Ordinance No. ___
Page 53
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B-42
(h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the special
pay to a family member serving in the Armed Forces who is exposed to hostile fire; and
Excluded from such anticipated income are:
(a) income from employment of children (including foster children) under the age of
18 years;
(b) payments received for the care of foster children or foster adults (usually persons with
disabilities, unrelated to the tenant family, who are unable to live alone);
(c) lump sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker’s compensation
and severance pay;
(d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
(e) income of a live-in aide, as defined by 24 CFR §5.403;
(f) the full amount of student financial assistance paid directly to the student or to the
educational institution;
(g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
(h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
(2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits because
they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
(3) amounts received by a participant in other publicly assisted programs which
are specifically for or in reimbursement of out-of-pocket expenses incurred (special
equipment, clothing, transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
(4) amounts received under a resident service stipend is a modest amount (not
to exceed $200 per month) received by a resident for performing a service for the Public
Housing Issuer or owner, on a part-time basis, that enhances the quality of life in the
development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
Ordinance No. ___
Page 54
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B-43
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family memb er as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
(i) temporary, nonrecurring or sporadic income (including gifts);
(j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full-term student 18 years old or older
(excluding the head of household and spouse);
(l) adoption assistance payments in excess of $480 per adopted child; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
(p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
__________Yes __________ No; or
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
__________Yes __________No
Ordinance No. ___
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B-44
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
__________Yes __________No
(d) If the answer to (c) above is yes, state:
(1) the combined total value of all such assets: $____________________
(2) the amount of income expected to be derived from such assets in the 12 -
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $_______________, and
(3) the amount of such income, if any, that was included in item 6 above:
$_______________
8. Are all of the individuals who propose to reside in the unit full-time students*?
__________Yes __________No
*A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
(a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
__________Yes __________No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the "Owner"), has
any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, dire ct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner
to determine maximum income for eligibility to occupy the unit; and I/we declare that all
information set forth herein is true, correct and complete and based upon information I/we
deem reliable and that the statement of total anticipated income contained in paragraph 6
is reasonable and based upon such investigation as the undersigned deemed necessary.
Ordinance No. ___
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B-45
11. I/We will assist the Owner in obtaining any information or documents required to
verify the statements made herein, including either an income verification from my/our
present employer(s) or copies of federal tax returns for the immediately preceding
calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent
or terminate my/our occupancy of the unit by institution of an action for ejection or other
appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this ________day of_____________________, 20________ (year) in the City
of Moorpark, California
________________________________________________________
_____________________________________________________
Applicant Applicant
_______________________________________________________
_____________________________________________________
Applicant Applicant
[Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
Ordinance No. ___
Page 57
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B-46
FOR COMPLETION BY OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $____________
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($ ___________ );
(2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount in
7(d)(1) would be if invested in passbook savings ($ _______________), subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance
($_______________);
(3) Enter at right the greater of the amount calculated under (1) or (2) above:
$__________________________
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $___________________
2. The amount entered in 1.c:
_______________ Qualifies the applicant(s) as a Very-Low Income Tenant(s).
_______________ Qualifies the applicant(s) as an Extremely Low Income Tenant(s).
3. Number of apartment unit assigned: _________ Bedroom size: ___________
Rent: $______________
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
________________ Employer income verification.
________________ Copies of tax returns.
________________ Other( ______________________________________ )
6. Is occupant a City of Moorpark resident on the waiting list who was given priority?
Yes: No:
___________________________________ ___________________
Manager Date
Ordinance No. ___
Page 58
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B-47
INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Applicant
Gross
Wages
& Salaries*
(YTD as of:
________)
Net
Income
from 1040
(self
employed)
1099
Income
Public
Assistance
Social
Security
Pension Unemploy
ment
disability or
workers
compensat
ion pay
Military
Pay
Alimony
and/or
Child
Support
Family
Supp.
(regular gift
from
person not
living in
unit)
1
2
3
4
(A) TOTAL INCOME $
*Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or insurance
payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written verification
is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property* $_____________________________ Savings $_______________________________
Stocks $_____________________________ Bonds $_______________________________
Other** $_____________________________
(B) TOTAL ASSET INCOME $
*Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount of
any loans secured by the property.
**Does not include the personal property i.e., furniture or automobiles.
TOTAL HOUSEHOLD INCOME (A + B) $
Ordinance No. ___
Page 59
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B-48
12853-0092\2729176v7.doc
INCOME VERIFICATION
(FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee’s current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages (Gross)
_________________
Overtime _________________
Bonuses _________________
Commissions _____________
Current Base Pay _____________
Other Income __________________
Avg. Total Hours
Worked Weekly __________________
Total Current Income_________________
Year-to-Date Income_________________
Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other ____________
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase $__________ per ________ start
date: ________
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
___________________________________________________________________
Date Employer
___________________________________________________________________
Signature Title
___________________________________________________________________
Employer’s Address Employer’s Phone Number
Ordinance No. ___
Page 60
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12853-0092\2729176v7.doc
APPLICANT
I hereby grant you permission to disclose my income to
________________________________ in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
______________________________________
Date
______________________________________________________________________
Print Name (Resident) Signature (Resident)
Please send to: ________________________________
(Management Co.
or Owner) ________________________________
________________________________
Ordinance No. ___
Page 61
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12853-0092\2729176v7.doc
INCOME VERIFICATION
(for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
______________________________________________________________
Signature Date
Ordinance No. ___
Page 62
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INCOME VERIFICATION
(for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
_____________________________ Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to _________________________________________ the
specific information requested below:
Date:_________________________________________________________________
Signature:_____________________________________________________________
Social Security No.: ______________________
Name (Print): ______________________________
Address(Print)__________________________________________________________
Monthly Benefits Began/Will Begin:
__________________________________________________
Social Security Benefit Amount:
$____________________________________________________
Other Benefit(s):______________________ Amount: $________________________
Medicare Deductions: $_________________________
Are benefits expected to change? [ ] Yes [ ] No
If yes, please state date and amount:
Date: _______________________of change
Amount $____________________
Ordinance No. ___
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If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
_________________________________________________________________
Date of Resumption: ____________
Amount:___________________________________
Date: ___________________________
Signature: ___________________________
Title: ___________________________
Please send form to:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
Ordinance No. ___
Page 64
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B-53
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INCOME VERIFICATION
(for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the ________________________________ Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
______________________________ the specific information requested below:
Date: _______________________________________________________________
Signature: _____________________________________________________________
Caseload Number: _______________________
Name (Print): _________________________
Case Number: _______________________
Case Worker: _________________________
1. Number of persons included in budget: _________________________
2. Total monthly budget $______________________________________
(a) Amount of grant $__________________
(b) Date aid last began: ____________________
(c)Other income and source: ________________________________________
(d) Is other income included in total budget? Yes No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):___________
4. If recipient is not receiving full grant, please indicate reason:
[ ] Overpayment due to client’s failure to report other income
[ ] Computation error
[ ]
Other:__________________________________________________________
Ordinance No. ___
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Date when full grant will resume: ____________________________________________
Date: _______________________________
Case Worker’s Signature: _____________________
Telephone: __________________________
District Office: ______________________________
Your very early response will be appreciated.
Please return form to:
________________________________________________________
________________________________________________________
________________________________________________________
Ordinance No. ___
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DECLARATION OF NO INCOME
As managing agents for _______________________________________________
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
________________________________
Name of Management Company
By:
________________________________
Name and Title
CERTIFICATION
I, ____________________________, do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment
Unemployment
Compensation
Social Security
Workers Compensation
Child Support
Education Grants/Work
Study
Self Employment
AFDC
SSI
Retirement Funds
Alimony
Income from Assets
Pensions
General Assistance
Disability
Union Benefits
Family Support
Annuities
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
________________________________ _______________________________
Signature Date
________________________________ _______________________________
Witness Signature Date
Ordinance No. ___
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Support Verification
Source’s Mailing Address: ___________________
Phone #: ______________________
Fax #: _________________________
___________________
___________________
Recipient: ___________________
______________________________________________________________________
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information requested
below regarding the above referenced individuals. This information will be used only for
determination of eligibility and/or rent computation. You will notice a release of
information is authorized by the applicant/tenant’s signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
_____________________________________________________________
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature: _______________________________________
Social Security #: _______________
Ordinance No. ___
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Please complete the following. If the monies are based on a percentage of the payor’s
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
[ ] Child Support ___________________
( ) weekly ( ) monthly ( ) yearly
[ ] Family Support ___________________
( ) weekly ( ) monthly ( ) yearly
[ ] Alimony ___________________ ( ) weekly ( ) monthly ( ) yearly
[ ] Other______________
(Please list type)
___________________ ( ) weekly ( ) monthly ( ) yearly
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:____________________________________________________________
______________________________________________________________________
______________________________________________________________________
Signature of Source: ________________________________
SSN#:____________________
Date Completed Form: ______________________________
Ordinance No. ___
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EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING _______
The undersigned, ___________________________, as the authorized
representative of (the “Owner”), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites (“Developer”) and the City of the City of Moorpark (the
“City”), dated as of ____________________, 20__.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held a vailable
for such occupancy and have been so held continuously since the date an Extremely Low
Income Tenant or Very Low Income Tenant vacated such Unit, as indicated:
Occupied by Extremely Low Income Tenants:
Number of Units: ________________________
Occupied by Very Low Income Tenants:
Number of Units:
Occupied by Low Income Tenants:
Number of Units:
Held vacant for occupancy continuously since last occupied by Extremely Low Income
Tenants and Very Low Income Tenants and Low Income Tenants.
Vacant Units
Number: _____________________
Occupied Units
Number: _______________________
Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants
who commenced occupancy of Units during the preceding [month/quarter]:
Extremely Low Income:
Units Nos.: ______________________________________________________
Ordinance No. ___
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Very Low Income:
Units Nos.: ______________________________________________________
Low Income:
Units Nos.: ______________________________________________________
Attached is a separate sheet (the “Bond Program Report”) listing, among other
items, the following information for each apartment Unit in the Project: the number of each
apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and
number of bedrooms of each Unit. It also indicates which Units are occupied by Extremely
Low Income Tenants, Low Income Tenants and Very Low Income Tenants and which
Units became Extremely Low Income Units, Low Income Units and Very Low Income
Units during the preceding [month/quarter]. The information contained thereon is true
and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
during such [month/quarter] and of Owner’s performance under the Affordable H ousing
Agreement among Owner and the City, has been made under the supervision of the
undersigned; and (2) to the best of the knowledge of the undersigned, based on the
review described in clause (1) hereof, the Owner is not in default under any of the ter ms
and provisions of the above documents [or describe the nature of any default in detail and
set forth the measures being taken to remedy such default:
.]
Ordinance No. ___
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EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(Attached.)
Ordinance No. ___
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Ordinance No. ___
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EXHIBIT “C”
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
(Exhibit F of First Amendment)
Design Phase: Complete on or before December 31, 2021
Tax-Exempt Bond and Tax Credit Applications: March 16, 2022
Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022
Plan Check/Building Permits: December 31, 2022
Date property must be acquired by Affordable Housing Owner: December 31, 2022
Evidence to City of all debt/equity funds for all Project costs (with comprehensive Project
budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing:
December 31, 2022
Grading: To commence within 30 days after acquisition of property by Affordable Housing
Owner or affiliate
Construction: 24 months from commencement of grading
Lease-Up: approximately 3 months following construction completion.
Ordinance No. ___
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EXHIBIT “D”
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
FORM OF OFFSITE IMPROVEMENT PERFORMANCE AND PAYMENT BONDS
(Exhibit K of First Amendment)
(Attached.)
Ordinance No. ___
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BOND NO. _________________
INITIAL PREMIUM:
SUBJECT TO RENEWAL
PERFORMANCE BOND
WHEREAS, the City of Moorpark (“CITY”) has executed an agreement with
Essex Moorpark Owner, L.P. (hereinafter “PRINCIPAL”), requiring PRINCIPAL to: (i)
perform certain work consisting of, but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the relocation of electrical transmission lines
(hereinafter the “Work”) and (ii) paying the City $400,000 in connection with that Work
(“Payment”);
WHEREAS, the Work and Payment to be performed or made by
PRINCIPAL is more particularly set forth in that certain Second Amendment to th e
Development Agreement dated __________2022, (hereinafter the “Agreement”); and
WHEREAS, the Agreement is hereby referred to and incorporated herein
by this reference; and
WHEREAS, PRINCIPAL or its contractor is required by the Agreement to
provide a good and sufficient bond for performance of the Agreement, and to guarantee
and warranty the Work constructed thereunder and the Payment.
NOW, THEREFORE, we the undersigned, Essex Moorpark Owner, L.P., as
PRINCIPAL and______________, a corporation organized and existing under the laws
of the State of _______ and duly authorized to transact business under the laws of the
State of California, as SURETY, are held and firmly bound unto the CITY in the sum of
__________________________ ($_____________), said sum being not less than one
hundred percent (100%) of the total cost of the Work and Payment as set forth in the
Agreement, we bind ourselves, our heirs, executors and administrators, successors and
assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such, that if PRINCIPAL and
its contractors, or their heirs, executors, administrators, successors or assigns, shall in all
things stand to and abide by, and well and truly keep and perform the covenants,
conditions, agreements, guarantees, and warranties in the Agreement and any alteration
thereof made as therein provided, to be kept and performed at the time and in the manner
therein specified and in all respects according to their intent and meaning, and to
indemnify and save harmless CITY, its officers, employees, and agents, as stipulated in
the Agreement, then this obligation shall become null and void; otherwise it shall be and
remain in full force and effect.
As a condition precedent to the satisfactory completion of the contract, the
above obligation shall hold good for a period of one (1) year(s) after the acceptance of
the work by CITY, during which time if PRINCIPAL shall fail to make full, complete, and
satisfactory repair and replacements and totally protect the CITY from loss or damage
Ordinance No. ___
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made evident during the period of one (1) year(s) from the date of completion of the work,
and resulting from or caused by defective materials or faulty workmanship, the above
obligation in penal sum thereof shall remain in full force and effect. The obligation of
SURETY hereunder shall continue so long as any obligation of PRINCIPAL remains.
Whenever PRINCIPAL shall be, and is declared by the CITY to be, in default
under the contract, the CITY having performed the CITY's obligations thereunder, the
SURETY shall promptly remedy the default in a manner mutually agreeable to both CITY
and SURETY:
1. SURETY's takeover of the performance obligations to complete the
contract by entering into an agreement with a completion contractor with terms and
conditions consistent with the original contract between CITY and PRINCIPAL; or
2. SURETY shall obtain a bid or bids for completing the contract in
accordance with its terms and conditions, and upon determination by SURETY of the
lowest responsive and responsible bidder, prepare a contract between such bidder and
the CITY (to the CITY's satisfaction), and make available as work progresses sufficient
funds to pay the cost of completion less the balance of the contract price, but not
exceeding, including other costs and damages for which S URETY may be liable
hereunder, the Penal Sum.
The term "balance of the contract price" as used in this paragraph shall
mean the total amount payable to PRINCIPAL by the CITY under the contract and any
modifications thereto, less the amount previously properly paid by the CITY to the
PRINCIPAL.
SURETY expressly agrees that the CITY may reject any contractor or
subcontractor, which may be proposed by SURETY in fulfillment of its obligations in the
event of default by PRINCIPAL. SURETY shall not utilize PRINCIPAL in completing the
contract nor shall SURETY accept a bid from PRINCIPAL for completion of the work if
the CITY, when declaring the PRINCIPAL in default, notifies SURETY of the CITY's
objection to PRINCIPAL's further participation in the completion of the work.
No right of action shall accrue on this bond to or for the use of any person
or corporation other than the CITY named herein or the succe ssors or assigns of the
CITY.
The prevailing party on any dispute (whether legal, equitable, or otherwise)
regarding the interpretation, enforcement, and respective rights and obligations under this
Performance Bond shall be entitled to recovery of reasona ble attorneys’ fees and costs
(including but not limited to consultant's and/or expert fees and costs).
As part of the obligation secured hereby, and in addition to the face amount
specified therefor, there shall be included costs and reasonable expenses a nd fees,
including reasonable attorneys’ fees, incurred by CITY in successfully enforcing such
obligation, all to be taxed as costs and included in any judgment rendered.
Ordinance No. ___
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The said SURETY, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or additions to the terms of the said Agreement or
to the Work to be performed thereunder or the specification accompanying the same shall
in any way affect its obligations on this bond, and it does hereby waive notice of any suc h
change, extension of time, alteration or addition to the terms of the Agreement or to the
Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this
_____ day on ______________________________________, 20___.
PRINCIPAL
By:
President
SURETY
By:
Attorney-in-Fact
Ordinance No. ___
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CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is att ached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Ventura )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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CERTIFICATE AS TO CORPORATE PRINCIPAL
________________________________________, certify that I am the Secretary of the
corporation named as principal in the attached bond, that who signed the said bond
on behalf of the principal was then of said corporation; that I know his signature,
and his signature thereto is genuine; and that said bond was duly signed, sealed and
attested for and in behalf of said corporation by authority of its governing Board.
(Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company
may be attached hereto.
Ordinance No. ___
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BOND NO.
INITIAL PREMIUM:____
SUBJECT TO RENEWAL
LABOR & MATERIAL BOND
WHEREAS, the City of Moorpark (“CITY”) has executed an agreement with
Essex Moorpark Owner, L.P. (hereinafter “PRINCIPAL”), requiring PRINCIPAL to: (i)
perform certain work consisting of, but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the relocation of electrical transmission lines
(hereinafter the “Work”) and (ii) paying the CITY $400,000 in connection with that Work
(“Payment”);
WHEREAS, the Work and Payment to be performed or made by
PRINCIPAL is more particularly set forth in that certain Second Amendment to the
Development Agreement dated _________, 2022 (hereinafter the “Agreement”); and
WHEREAS, PRINCIPAL or its contractor is required to furnish a bond in
connection with the Agreement providing that if __________ or any of his or its
contractors shall fail to pay for any materials, provisions, or other supplies, or terms used
in, upon, for or about the performance of the Work contracted to be done, or for any work
or labor done thereon of any kind, or for amounts due under the p rovisions of Title 3
(Commencing with Section 9000) of Part 6 of Division 4 of the Civil Code , with respect to
such work or labor, that the SURETY on this bond will pay the same together with a
reasonable attorney’s fee in case suit is brought on the bond.
NOW, THEREFORE, we the undersigned, as __________________
PRINCIPAL and __________________, a corporation organized and existing under the
laws of the State of_________________ and duly authorized to transact business under
the laws of the State of California, as SURETY, are held and firmly bound unto the CITY
and to any and all material men, persons, companies or corporations furnishing materials,
provisions, and other supplies used in, upon, for or about the performance of the said
Work, and all persons, companies or corporations renting or hiring teams, or implements
or machinery, for or contributing to said Work to be done, and all persons performing work
or labor upon the same and all persons supplying both work and materials as aforesaid,
the sum of ($_____________), said sum being not less than 100% of the total amount
payable by __________ under the terms of the Agreement, for which payment well and
truly to be made, we bind ourselves, our heirs, executors and administrators, successors
and assigns jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if __________ or
its contractors, or their heirs, executors, administrators, successors, or assigns, shall fail
to pay for any materials, provisions, or other supplies or machinery used in, upon, for or
about the performance of the Work contracted to be done, or for work or labor thereon of
any kind, or fail to pay any of the persons named in California Civil Code Section 9100,
or amounts due under the Unemployment Insurance Code with respect to work or labor
performed by any such claimant, or for any amounts required to be deducted, withheld,
and paid over to the Employment Development Department from the wages of employees
Ordinance No. ___
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of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment
Insurance Code with respect to such work and labor, and all other applicable laws of the
State of California and rules and regulations of its agencies, then said S URETY will pay
the same in or to, an amount not exceeding the sum specified herein.
Upon expiration of the time within which the California labor Commissioner
may serve a civil wage and penalty assessment against the PRINCIPAL, any of its
subcontractors, or both the PRINCIPAL and its subc ontractors pursuant to Labor Code
Section 1741, and upon expiration of the time within which a joint labor management
company may commence an action against the PRINCIPAL, any of its subcontractors, or
both the PRINCIPAL and its subcontractors pursuant to Labor Code Section 1771.2, if
the condition of this Bond be fully performed, then this obligation shall become null and
void; otherwise, it shall be and remain in full force and effect.
In case legal action is required to enforce the provisions of this bon d, the
prevailing party shall be entitled to recover reasonable attorneys’ fees in addition to court
costs, necessary disbursements and other consequential damages. In addition to the
provisions hereinabove, it is agreed that this bond will inure to the b enefit of any and all
persons, companies and corporations entitled to make claims under Sections 8024, 8400,
8402, 8404, 8430, 9100 of the California Civil Code, so as to give a right of action to them
or their assigns in any suit brought upon this bond.
The said SURETY, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or additions to the terms of the Agreement or to the
Work to be performed thereunder or the specification accompanying the same shall in
any way affect its obligations on this bond, and it does hereby waive notice of any such
change, extension of time, alteration or addition to the terms of the Agreement or to the
Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this
_____ day on ______________________________________, 20___.
PRINCIPAL
By:
President
SURETY
By:
Attorney-in-Fact
Ordinance No. ___
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CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California )
County of Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
Ordinance No. ___
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CERTIFICATE AS TO CORPORATE PRINCIPAL
________________________________________, certify that I am the Secretary of the
corporation named as principal in the attached bond, that who signed the said bond
on behalf of the principal was then of said corporation; that I know his signature,
and his signature thereto is genuine; and that said bond was duly signed, sealed and
attested for and in behalf of said corporation by authority of its governing Board.
(Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company
may be attached hereto.
Ordinance No. ___
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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 and § 27383
DEVELOPMENT AGREEMENT
by and between the
CITY OF MOORPARK
and
111/IIIIIIIIII IIIIIIII IIII IIIIIIIIIIII I II II Ill 20170417-00050720-0 1/137Ventura County Clerk and Recorder MARK A. LUNN 04/17/2017 02:20:53 PM1189866 $.00 VA
ESSEX MOORPARK OWNER, LP.
ATTACHMENT 2
156
DEVELOPMENT AGREEMENT
This Development Agreement ("the Agreement") is made and entered into on
April 17, 2017, by and between the CITY OF MOORPARK, a municipal corporation
referred to hereinafter as "City") and ESSEX MOORPARK OWNER, L.P., the owner of
real property within the City of Moorpark generally referred to as Residential Planned
Development Permit 2012-02 (referred to hereinafter individually as "Developer"). City
and Developer are referred to hereinafter individually as "Party" and collectively as
Parties." Capitalized terms used in this Agreement but not defined herein shall have
the meanings given such terms in the Affordable Housing Agreement (defined in
Section 1.5 hereof). 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, as more specifically described by the legal description set forth
in Exhibit A, which exhibit is attached hereto and incorporated herein by
this reference (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.") The
City Council found that the Mitigated Negative Declaration ("MND") and
Mitigation Monitoring and Reporting Program ("the MMRP") adopted by
Resolution No. 2007-2611 to be applicable to this Agreement and the
Project Approvals as defined in Section 1.4 of this Agreement and that no
changes or new information within the scope of State CEQA Guidelines
Section 15162 requires the preparation of a new or subsequent
environmental document in connection with the approval of this
Agreement.
1.4 General Plan Amendment No. 2004-05 ("GPA 2004-05"), Zone Change
No. 2004-04 ("ZC 2004-04"), and Residential Planned Development
Permit No. 2012-02 ("RPD 2012-02"), including all subsequently approved
modifications and permit adjustments to RPD 2012-02 and all
amendments thereto (collectively "the Project Approvals"; individually "a
Project Approval") provide for the development of the Property with a 200-
157
unit residential apartment complex and the construction of certain off-site
improvements in connection therewith ("the Project").
1.5 The Project shall include at least fifty (50) Affordable Units rented to
individuals and families whose incomes do not exceed those specified by
the Affordable Housing Agreement executed by the Developer in favor of
the City contemporaneously with this Agreement (the "Affordable Housing
Agreement") at rents no greater than those set forth in the Affordable
Housing Agreement (the "Affordable Units"). The Project shall be
restricted and encumbered by the Affordable Housing Agreement. The
City and Developer acknowledge and agree that the Developer may apply
for, qualify, develop and finance the Project in a manner that qualifies for
tax exempt bond financing and federal low income housing tax credits. For
that purpose, the Developer may seek City approval for an air rights
subdivision of the Project into separate parcels so that the parcels
containing the 16 Very Low Income Units and the 24 Low Income Units
required by the Affordable Housing Agreement can be conveyed to and
owned by one owner separate from the ownership of the other rental Units
in the Project, but the Very Low Income Units and the Low Income Units
cannot be sold to or owned by multiple owners (Le., the Very Low Income
Units and the Low Income Units must be owned by a single owner at all
times, except that the owner of market rate Units may also own ten (10)
Moderate Income Units which will be rented as Low Income Units until the
last to end of the Compliance Period and Extended Use Period or
Qualified Project Period). It is anticipated that if tax exempt bond financing
and low income housing tax credits are used in connection with the
Project the Very Low Income Units, the Low Income Units and the
Moderate Units will be rented and occupied in accordance with the
restrictions set forth in the Affordable Housing Agreement.
1.6 City and Developer acknowledge and agree that the previous
Development Agreement No. 2004-03 for the Property, approved by the
City Council on July 18, 2007 by Ordinance No. 355, did not take effect
and was not recorded because the Developer did not execute it. City and
Developer also acknowledge and agree that by the enabling ordinance
approving this new Agreement, the City's previous approval of
Development Agreement No. 2004-03 pursuant to Ordinance No. 355 is
rescinded and that rescission will take effect upon the date the enabling
ordinance for this Agreement under Government Code Section 36937
Enabling Ordinance") becomes effective ("Operative Date").
1.7 City and Developer acknowledge and agree that the approval of
Residential Planned Development Permit No. 2004-06 for the Property,
approved by the City Council on July 18, 2007 by Resolution No. 2007-
2612, expired due to lack of Project inauguration by Developer.
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1.8 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.
1.9 By this Agreement, Developer desires to obtain the binding agreement of
City topermit 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.
1.10 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.
1.11 On June 4, 2013, the Planning Commission commenced a duly noticed
public hearing on this Agreement, and at the conclusion of the hearing on
June 4, 2013 recommended approval of this Agreement.
1.12 On March 1, 2017, the City Council of City ("City Council") commenced a
duly noticed public hearing on this Agreement, and following the
conclusion of the hearing approved the Agreement by adoption of
Ordinance No. 443 ("the Enabling Ordinance") on March 15, 2017.
2. Property Subject To This Agreement. All of the Property shall be subject to this
Agreement. The Property may also be referred to hereinafter as "the site" or "the
Project".
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 Section 3.4 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 Section 3.4 below.
3. 2 Conveyance of Very Low Income Units and Low Income Units. Upon
recordation of an approved final map under Section 7.1 below creating
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legal air rights parcels for the Property and delivery of reasonable
evidence to the City Manager showing that the transferee is partly owned
directly or indirectly) and is controlled (directly or indirectly) by Developer,
Developer may convey the subdivided portion of the Property containing
such Very Low Income and Low Income Units to a single entity so owned
and so controlled by Developer (the "Affordable Housing Owner") subject
to the Affordable Housing Agreement between City and Developer, and
this Agreement shall inure to the benefit of and be binding upon the
Affordable Housing Owner. Developer and Affordable Housing Owner
shall not convey fee title to such Very Low Income Units or the Low
Income Units to any other person or entity. Developer shall reimburse
City within ten (10) days after written demand (with an explanation of the
costs) for all costs incurred by City in evaluating the conveyance to the
Affordable Housing Owner and any subsequent permitted conveyance by
the Affordable Housing Owner.
3.3 No Other Separate Conveyance of Very Low Income Units and Low
Income Units. After the initial conveyance by Developer to Affordable
Housing Owner of Very Low Income Units and Low Income Units,
Developer and the Affordable Housing Owner and their successors in
interest shall not convey their respective portions of the Property
separately, but shall only convey them concurrently and to the same
purchaser, only to a purchaser reasonably approved in writing by City
which will consider the reputation and experience of the purchaser in
owning and operating affordable rental units). As a condition to the initial
conveyance by Developer to Affordable Housing Owner of Very Low
Income Units and Low Income Units, Developer and Affordable Housing
Owner shall execute, acknowledge and record (i) a separate agreement
Le., a covenant and agreement to hold property as one parcel) imposing
the foregoing restriction on the Property, which shall be subject to the
written approval of City, and (ii) "conditions, covenants and restrictions" for
the Affordable Units and the remainder of the Project ("CC&R's"), which
shall also be subject to the written approval of City. Such separate
agreement and CC&R's shall be senior to any and all deeds of trust and
other liens (except property taxes and assessments not yet due).
3.4 Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer's and Affordable Housing Owner's interests in the Property to a
single purchaser (or any such purchaser or subsequent purchaser's sale
of the entire Property), Developer and Affordable Housing Owner, or any
such subsequent purchaser (as applicable), shall be released from its
obligations hereunder with respect to the Property subsequent to the
effective date of the sale or transfer, provided that the seller or transferor
i) was not in breach of this Agreement at the time of the sale or transfer,
and (ii) prior to the sale or transfer, delivered to City a written assumption
agreement, duly executed by the purchaser or transferee and notarized by
a notary public, whereby the purchaser expressly assumes the obligations
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under this Agreement with respect to the Property. Failure to provide a
written assumption agreement hereunder shall not negate, modify or
otherwise affect the liability of the purchaser or transferee pursuant to this
Agreement. Nothing contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or transfer, except as
otherwise provided in this Agreement.
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 Timing of Development. Developer shall comply with the Schedule of
Performance attached hereto as Schedule 1, subject to Excused Delays
as defined in Section 10) and as amended from time to time and
approved in writing by the City Council.
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 section 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.
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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.q. 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:
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 City-wide basis to all substantially
similar types of development projects or to all properties with similar
land use designations;
e) control residential rents;
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f) 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
g) modify the land use from what is permitted by the City's General
Plan Land Use Element at the Operative Date of this Agreement or
that prohibits or restricts the establishment or expansion of urban
services including but not limited to community sewer systems to
the Project.
5.4 [INTENTIONALLY OMITTED]
5.5 Modification of Approvals. Throughout the term of this Agreement,
Developer shall have the right, at its election and without risk to or waiver
of any right that is vested in it pursuant to this section, to apply to City for
modifications to Project Approvals and Subsequent Approvals. The
approval or conditional approval of any such modification shall not require
an amendment to this Agreement, provided that, in addition to any other
findings that may be required in order to approve or conditionally approve
the modification, a finding is made that the modification is consistent with
this Agreement and does not alter the permitted uses, density, intensity,
maximum height, size of buildings or reservations and dedications as
contained in the Project Approvals.
5. 6 Issuance of Building Permits. No Building Permit shall be unreasonably
withheld or delayed from Developer. In addition, no Final Building Permit
final inspection or Certificate of Occupancy will be unreasonably withheld
or delayed from Developer if all infrastructure required by the Project
Approvals, Subsequent Approvals, and this Agreement to serve the
portion of the Property covered by the Final Building Permit is in place or
is scheduled to be in place prior to completion of construction and all of
the other relevant provisions of the Project Approvals, Subsequent
Approvals and this Agreement have been satisfied. Consistent with
section 5.1 of this Agreement, in no event shall building permits be
allocated on any annual numerical basis or on any arbitrary allocation
basis.
6. Developer Agreements. Note: Certain fees payable by Development under this
Section 6 are also set forth and cross-referenced on Schedule 2 attached hereto.
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 leasing offices are
considered to be part of the residential uses.
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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 unit within the boundaries of the Property,
Developer shall pay City a one-time development fee as described herein
the "Development Fee"). The Development Fee may be expended by
City in its sole and unfettered discretion. The amount of the Development
Fee shall be Eight Thousand Four Hundred Dollars ($8,400.00) per
residential unit. If not paid by January 1, 2019, the fee shall be adjusted
annually commencing January 1, 2019 by the larger increase of a) or b) as
follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles /Riverside/Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items
for the twelve (12) month period available on December 31 of the
preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Development Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
6.4 Traffic Mitigation Fee. As a condition of the issuance of building permit for
each residential use 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 Eight Thousand Five Hundred Twenty-seven Dollars ($8,527.00)
per residential unit. If not paid by January 1, 2019, then on January 1,
2019, and annually thereafter until paid, the contribution amount shall be
increased to reflect the change in the Caltrans Highway Bid Price Index for
Selected California Construction Items for the twelve (12) month period
available on December 31 of the preceding year ("annual indexing"). 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.
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6.5 [INTENTIONALLY OMITTED.]
6.6 Processing Fees. On the Operative Date (defined in Section 1.6 above),
Developer shall pay all outstanding City processing costs related to
preparation of this Agreement, the Project Approvals, the MND.
6.7 Park Fees. Prior to the issuance of the building permit for each residential
dwelling unit within the Property, Developer shall pay a one-time fee in lieu
of the dedication of parkland and related improvements ("Park Fee"). The
amount of the Park Fee shall be Eight Thousand Four Hundred Dollars
8,400.00) for each residential dwelling unit within the Property. If the
Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted
annually commencing January 1, 2019 by the larger increase of a) or b) as
follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los
Angeles/Riverside/Orange County metropolitan area during the
prior year. The calculation shall be made using the month of
October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items
for the twelve (12) month period available on December 31 of the
preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Park Fee shall remain at its then current amount until
such time as the next subsequent annual indexing which results in an
increase.
Developer agrees that the above-described payments shall be deemed to
satisfy the parkland dedication requirement set forth at California
Government Code Section 66477 et seq. for the Property. Developer also
understands that because the above-described payments shall be
deemed to satisfy applicable parkland dedication requirements, a public
trail through the Property shall not be required.
6.8 [INTENTIONALLY OMITTED.]
6.9 Densities Allowed for Development. 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 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
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obtained through the Project Approvals that is greater than would
otherwise be available, to: (i) execute, acknowledge and record against
the Property an Affordable Housing Agreement in the form attached
hereto as Exhibit F substantially concurrently with the recording of this
Agreement and ensure that the Affordable Housing Agreement is not
subject or subordinate to any liens (except for property taxes and
assessments not yet due); and (ii) comply with the terms thereof, which
are incorporated herein by reference, during the term of this Agreement
after which the Affordable Housing Agreement shall remain in effect for its
stated term). Residential Planned Development Permit No. 2012-02,
including the special conditions that incorporate and include all of the
requirements set forth in the Affordable Housing Agreement are part of the
Project conditions of approval and not merely contractual in nature.
6.10 Affordable Unit Priority Leasing. Developer agrees to the greatest extent
permitted by state and federal law to grant priority to the Affordable Units
to eligible City of Moorpark residents to the extent it does not (i) jeopardize
Developer's rights pursuant to this Agreement or the Project Approvals, or
ii) jeopardize or materially affect any City-issued bond financing for the
Project obtained by Developer.
6.11 Bond Issuance Costs. In the event City issues bonds to provide any
financing for the Project, Developer shall pay an initial issuer fee to City of
Fifty Thousand Dollars ($50,000.00). The fee shall be paid upon funding
of the City-issued bond financing. Developer agrees that City may at its
sole discretion select the bond counsel, financial advisor and other
professional service providers deemed necessary and appropriate by
Developer that City deems necessary to effectuate City-issued bond
financing. Developer further agrees to fund all costs actually incurred by
City in connection with such City-issued bond financing by providing City
with deposits for all such bond financing related costs not contingent on
the sale of bonds. In addition, Developer will pay for all city attorney and
city staff time at applicable rates. With the exception of city staff costs, all
other costs including, but not limited to out of pocket and professional
services costs shall have City overhead expense of fifteen percent (15%)
added to said costs. If the City does not act as the issuer of bonds, the
City shall cooperate in good faith with the issuance of bonds for the
Project by others, including, but not limited to, holding a TEFRA hearing at
a time reasonably approved by the City Manager; however, Developer
shall reimburse City within ten (10) business days after written demand for
all costs actually incurred by City in connection therewith, including City
staff and City attorney time, and the overhead markup described above for
other costs. If the City does not act as the issuer of the bonds, Developer
shall pay a fee of Fifty Thousand Dollars ($50,000.00) to City for its
cooperation with the issuance of Bonds for the Project by others, upon the
funding of the bond financing; in addition, any costs incurred by City in
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connection with such cooperation shall be reimbursed/paid by Developer
in accordance with the preceding provisions of this paragraph.
6.12 Air Quality Fees. Developer agrees that the Mitigation Measures included
in the City Council approved MND and MMRP, or subsequent
environmental clearance document approved by the Council, set forth the
mitigation requirements for air quality impacts. Developer agrees to pay to
City a one-time (not annual) 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 One Thousand Two Hundred Thirty and
No/100 Dollars ($1,230.00) per residential unit to be paid prior to the
issuance of the building permit for the first residential building in RPD
2012-02. If the Air Quality Fee is not paid by January 1, 2019, then
commencing on January 1, 2019, 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/Riverside/Orange County metropolitan area during the prior year.
The calculation shall be made using the month of December over the prior
month of December. 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.
6.13 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a)
Developer shall pay the City a Five Thousand Dollar ($5,000) Assessment
District Formation Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment District
containing two zones (one zone to be fully funded and the other to be a
back up zone), as determined by the City at the City's discretion, shall be
formed that includes the Property. The first District out of the two Districts
or the first zone of the one District, whichever is applicable, shall be for the
purposes of funding future costs for the maintenance landscaping and
irrigation of the landscaped area above the retaining wall along the
southern perimeter of the Property and the maintenance of the storm
water quality basin and drainage improvements, including basin
landscaping and irrigation. The second District or second zone of the
District, whichever is applicable, shall be for the maintenance of parkway
landscaping on Casey Road and Walnut Canyon Road and Project slopes
adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emergency access drive. It shall be the
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intent of the City to approve the required assessment each year, but to
only levy that portion of the assessment necessary to recover any past
City costs or any anticipated City costs for the that fiscal year. The City
shall administer the annual renewal of the Assessment District or Districts,
and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses.
Developer agrees to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and
for annual increases in the assessments thereunder, for the purposes
specified in this subsection. Developer hereby waives any right it may
have to contest or protest any such assessments or assessment
increases. In the event that any such Assessment District has insufficient
funds for its purposes, then Developer shall pay the funds required to the
Assessment District within five (5) business days after written demand
from the Assessment District from time to time. Developer also agrees to
add this language to any Regulatory Agreement as part of the sale of any
bonds issued by the City for this Project.
6.14 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.
6.15 AOC Fees. If paid prior to January 1, 2020, Developer shall pay the Los
Angeles Avenue Area of Contribution (AOC) fee in effect at the time of
project approval for each residential unit in a building prior to the issuance
of the building permit for that residential building within the Project,
consistent with City Resolution No. 2014-3336. If paid on or after January
1, 2020, Developer shall pay the Los Angeles Avenue Area of Contribution
AOC) fee in effect at the time of building permit issuance.
Developer shall pay the Gabbert Road/Casey Road Area of Contribution
fees, if any, in effect at the time of building permit issuance for each
residential unit in a building prior to the issuance of the building permit for
that residential building within the Project.
6.16 Street Improvement Standards. The street improvements for all streets
scheduled for dedication to the City shall be designed and constructed by
Developer to provide for a 50-year life as determined by the City Engineer.
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6.17 Fee Protest Waiver. Developer agrees that any fees and payments
pursuant to this Agreement and for RPD 2012-02 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 Section 6.3 of
this Agreement are not public improvement fees collected pursuant to
Government Code Section 66006 and statutes amendatory or
supplementary thereto.
6.18 Annual Review Procedures. Developer agrees to comply with Section
15.40A 50 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.
6.19 Art in Public Places Fee. Developer agrees to pay the Art in Public Places
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 (1.0 percent of total
building valuations excluding land value and off-site improvement costs).
6.20 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.
6.21 [INTENTIONALLY OMITTED]
6.22 CPI Indexes. In the event the "CPI" referred to in Sections 6.3, 6.7 or 6.12
above or Sections 6.24 or 7.18 below, or the "referenced Index" referred to
in Section 6.4 above are discontinued or revised, a successor index with
which the "CPI" and or "referenced 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 "referenced Index" had not
been discontinued or revised.
6.23 Conveyance to City of City Site; Utility and Construction Easements. The
Developer agrees to convey to City the site (hereinafter referred to as the
City Site") as shown in Exhibit "B" pursuant to the Purchase and Sale
Agreement attached hereto as Exhibit "C" (the "Purchase and Sale
Agreement") subject to the utility easement described in Exhibit "G".
Developer shall execute and deliver the Purchase and Sale Agreement
concurrently with its execution and delivery of this Agreement and upon
delivery to Developer of a copy thereof executed by the City, Developer
shall comply with the Purchase and Sale Agreement.
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If at any time the City Manager determines that a construction easement
for the City is necessary within the slope on the southerly fifteen (15) feet
of the Property for purposes of improving the City Site and City Manager
requests such an easement in writing, then Developer shall grant a
construction easement to City which shall expire five (5) years after the
last Certificate of Occupancy is issued (and the City Manager is hereby
authorized to execute a Certificate of Acceptance for such easement).
6.24 Flood Control Channel Improvements and Property Line Improvements.
Developer agrees to enclose the flood control channel located on the
eastern portion of the Project as shown on the approved Project Site Plan
to connect to the enclosed portion of the channel on the City Site to the
satisfaction of the City Engineer/Public Works Director and the Ventura
County Watershed Protection District. Developer shall be responsible for
any aesthetic or landscape improvements over and around the channel as
required by Ventura County Watershed Protection District and as part of
the Project Approvals. Developer further agrees to construct retaining
walls (made of slumpstone, not precision blocks) with a color approved by
the Community Development Director in good faith and landscaping along
the southerly property line as shown on the Project Site Plan as approved
and conditioned by the City Council Resolution approving Residential
Planned Development Permit No. 2012-02 to the satisfaction of the
Community Development Director.
6.25 High Street Improvements. Developer agrees, prior to issuance of the first
building permit for the first residential building, within the Project to
improve High Street within its existing right-of-way from its intersection
with Moorpark Avenue up to the point of the temporary fire access to the
extent required by Ventura County Fire Department, and the City Engineer
in accordance with the approved Site Plan for the Project, for emergency
secondary access to the Project. In no event shall Developer be required
to acquire any property in order to fulfill this obligation.
6.26 Power Pole Relocation Costs and Fees. Per the Real Property Acquisition
Agreement between City and Essex approved by the City Council on
March 18, 2009, City paid for a private utility consultant (BJ Palmer &
Associates) to redesign (Revised Plan) the Edison 66kV Essex Pole
Relocation Plan (Essex Plan) in order to plan for the relocation of the
existing poles. The Real Property Acquisition Agreement also called for
City to pay for installation of any poles or guy poles required in addition to
those shown on the Essex Plan. Developer had agreed to pay for the
relocation of the existing 66 KV overhead power lines as shown on the
Essex Plan under the Real Property Acquisition Agreement. Developer
now agrees that the relocation of the existing poles as shown in the
Revised Plan contained in Exhibit "D" does not require any additional
poles or guy poles from those shown on the Essex Plan, and that City is
not obligated to pay any further costs under the Real Property Acquisition
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Agreement. However, Developer further agrees to pay $400,000 to City
prior to issuance of the certificate of occupancy for the first residential
building, to be used by City in its sole and unfettered discretion, due to the
power poles in the Revised Plan limiting full utility and use of City property.
6.27 Required Tenant and Guest Parking. Developer agrees to provide a total
of at least 2.00 parking spaces per unit on site. Two parking spaces shall
be designated and reserved for each of the 2-bedroom and 3-bedroom
units, and one space shall be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest
parking. At least one of the parking spaces designated and reserved for
each of the units shall be in a garage or covered carport. There shall be
no extra charges for required parking for any units (whether or not they
are Affordable Units). Developer shall only be required to provide ninety-
four(94) guest parking spaces.
6.28 [INTENTIONALLY OMITTED]
6.29 Restoration of City Site. Prior to the issuance of a grading permit by City
for the Property, Developer shall provide reasonable evidence satisfactory
to the City Engineer/Public Works Director and the Director of Community
Development of the amount of stockpiled dirt placed onto the City Site
prior to January 1, 2017; such amount shall be the maximum amount of
dirt that may be removed from the City Site for placement on the Property.
Developer shall, prior to the conveyance of the City Site to City and as a
condition to issuance of the Certificate of Occupancy for the last building
within the Project, and consistent with Section 7.10 of this Agreement,
restore the City Site to a reasonable condition, free of Developer's
construction debris, piles of construction related dirt and all other
construction material deposited or stockpiled by Developer to the
satisfaction of the City Engineer and Community Development Director.
The elevation of the City Site must be restored to the level prior to the
Developer's use of the City Site for Developer's stockpiling of construction
dirt and material (except for graded access and the storm water quality
basin, which shall be at the elevations required by the Project Approvals)
to the satisfaction of the City Engineer/Public Works Director and the
Community Development Director.
6.30 [INTENTIONALLY OMITTED]
6.31 Prior Development Agreement and Residential Planned Development
Permit. Developer agrees that the previous Development Agreement No.
2004-03 for the Property, approved by the City Council on July 18, 2007
by Ordinance No. 355, did not take effect and was not recorded because
the Developer did not execute it. Developer further agrees that by the
enabling ordinance approving this new Agreement, the City's previous
approval of Development Agreement No. 2004-03 pursuant to Ordinance
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No. 355 is rescinded and that rescission will take effect upon the
Operative Date. Developer further agrees that the approval of Residential
Planned Development Permit No. 2004-06 for the Property, approved by
the City Council on July 18, 2007 by Resolution No. 2007-2612, had
expired due to lack of Project inauguration by Developer.
6.32 [INTENTIONALLY OMITTED]
6.33 [INTENTIONALLY OMITTED]
6.34 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 General
Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No.
2004-04 ("ZC 2004-04").
6.35 Annual Community Services Fee. Commencing upon issuance of a
Zoning Clearance by the City for occupancy of the first unit of the Project,
and on each anniversary thereof, Affordable Housing Owner shall pay to
City a community services fee equal to Eight Thousand Dollars
8,000.00) increased by two percent (2%) on each anniversary of the
Operative Date. (This fee is the same fee as is included in the Affordable
Housing Agreement.)
6.36 Indemnity. Developer will defend, indemnify and hold City harmless from
and against any and all claims, liabilities, losses, damages, costs and
expenses arising from any activity by Developer or its contractors on the
City Site.
6.37 Storm Water/Flood Determination Basin Obligations. Developer shall fulfill
its obligations under Section 7.18.
6.38 Status of Real Property Acquisition Agreement. Developer hereby
stipulates and agrees that all of the obligations of the City under that
certain Real Property Acquisition Agreement dated March 31, 2009 (the
Portfolio Agreement") between the City and Essex Portfolio, L.P. have
been satisfied. Developer shall defend, indemnify and hold City harmless
from and against any and all claims by Essex Portfolio, L.P.: (i) that the
foregoing is not correct; or (ii) under or with respect to the Portfolio
Agreement.
6.39 Well Site Deed. Concurrently with its execution and delivery to City of this
Agreement, Developer shall execute, cause to be duly acknowledged and
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deliver to City an original of a Grant Deed in the form attached hereto as
Exhibit "I" conveying the so-called "well site" to City.
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
expedited and parallel processing of applications for Project Approvals
and all Subsequent Approvals and Building Permits for the Project area
and if requested in writing by Developer shall use overtime and
independent contractors whenever possible. City shall process an air
rights subdivision separating the sixteen (16) Very Low Income Units and
the twenty-four (24) Low Income Units required by the Affordable Housing
Agreement so that they can be conveyed to the Affordable Housing Owner
pursuant to the aforementioned map (but no other subdivision maps) upon
receipt of a complete application from Developer. Developer shall assume
any risk related to, and shall pay the additional costs incurred by City for,
any expedited and parallel processing. City shall also commit reasonable
time and resources of City staff to work with the Ventura County Water
Protection District for the processing and permitting of the plans for the
undergrounding of the channel.
7.2 Easement 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 fifteen percent (15%) on all out-of-pocket costs.
7.3 [INTENTIONALLY OMITTED]
7.4 Concurrent Entitlement Processinq. 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.
7.5 Park Fees. City agrees that the Park Fee required under Section 6.7 of
this Agreement meets all of Developer's obligation for park land dedication
provisions of state law and City codes.
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7.6 [INTENTIONALLY OMITTED]
7.7 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.
7.8 [INTENTIONALLY OMITTED]
7.9 Acquisition by City of City Site. Provided Developer shall have duly
executed and delivered the Purchase and Sale Agreement to City, City
shall enter into the Purchase and Sale Agreement to acquire the City Site.
7.10 Developer/City Use of City Site for Stockpiling Dirt. Developer may
reasonably stockpile construction dirt and materials on the City Site during
construction of the Project, subject to Section 6.29. Upon execution of the
Purchase Agreement, Developer shall grant an easement to City pursuant
to the Easement Agreement in the form and substance attached as
Exhibit "C" to the Purchase Agreement pursuant to which City shall have
access to the (approximately) two (2) acres of the City Site on the
southeastern portion of the City Site, adjacent to the existing High Street
improvements and otherwise at a location reasonably acceptable to City
more particularly described in the Easement Agreement, on which the City
may stockpile dirt prior to the conveyance of the City Site to the City, and
in connection therewith, City shall comply with Section 2.2 of the Purchase
and Sale Agreement and the Easement Agreement. The City agrees to
fence the approximately two (2) acre site to separate it from the balance of
the City Site. Prior to issuance of the first building permit for the Property,
the portion of the City Site used by Developer under the first sentence of
this Section 7.10 shall be restored by Developer to a reasonable condition,
free of Developer's construction debris, piles of dirt and all other
construction-related material deposited or stockpiled by Developer, and to
its elevation level that existed prior to Developer's stockpiling of dirt and
material, all to the satisfaction of the City Engineer/Public Works Director
and Community Development Director.
7.11 Parking Requirements for Tenants and Guests. The parking requirements
shall be as set forth in Section 6.27 above.
7.12 Art in Public Places Fee. City agrees that the Art in Public Places Fee
required under Section 6.19 of this Agreement meets all of Developer's
obligation for Art in Public Places provisions of City codes and resolutions.
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7.13 Bond Financing. City acknowledges Developer may want to use City-
issued bond financing for the Project. If City, at its sole and absolute
discretion, authorizes such bond financing, then City agrees to use good
faith efforts to accommodate any request by Developer for an inducement
resolution allowing the use by Developer of City-issued bond financing for
the Project. City shall also comply with its obligations under Section 6.11
above.
7.14 [INTENTIONALLY OMITTED]
7.15 Grant Funding Assistance. City shall use good faith efforts, at no cost to
City, to assist Developer in obtaining public grants, loans, or other public
assistance from public agencies other than the City, including, but not
limited to Metrolink, but only if assisting Developer in obtaining such funds
does not directly or indirectly financially burden City.
7.16 [INTENTIONALLY OMITTED]
7.17 Power Pole Relocation. City agrees to accept relocation of the Edison
66kV power poles on City Property consistent with the Revised Plan
discussed in Section 6.26 and attached hereto as Exhibit "D".
7.18 Storm Water/Flood Detention Basin. City agrees that Developer may use
the storm water/flood detention basin located on the City Property and
depicted on Exhibit "H" for storm water/retention purposes for the Project,
and City shall execute and deliver a revocable license agreement to
Developer to that affect; however, City may elect by written notice to
Developer to relocate said detention basin and any service road and
secondary access road located on the City Property at any time, and
Developer shall reimburse or pay City for the costs of such relocation
within ten (10) business days after written demand from City from time to
time describing such costs. Developer shall promptly provide a bond
acceptable to City in the amount of such costs, as projected in good faith
by City, to ensure payment of the costs, and every two (2) years the
amount of the bond shall be increased (by amendment or by a
replacement bond) by the percentage increase over the applicable two
year period in the Caltrans Highway Bid Price Index for Selected California
Construction Items, as determined in good faith by the City Manager.
7.19 Extension of High Street. City agrees that Developer shall not be required
to make any improvements related to the extension of High Street except
as necessary to meet Ventura County Fire Protection District requirements
for the provision of secondary emergency access to the Property.
7.20 Prior Development Agreement and Residential Planned Development
Permit. City agrees that the previous Development Agreement No. 2004-
03 for the Property, approved by the City Council on July 18, 2007 by
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Ordinance No. 355, never was executed, as Developer never had signed
the previous Development Agreement No. 2004-03, and that the enabling
ordinance for previous Development Agreement No. 2004-03 (Ordinance
No. 355) is rescinded upon the Operative Date. City further agrees that
the approval of Residential Planned Development Permit No. 2004-06 for
the Property, approved by the City Council on July 18, 2007 by Resolution
No. 2007-2612, had expired due to lack of Project inauguration by
Developer.
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; (e) shortage of materials or supplies; (f)
damage to work in progress by reason of fire, flood, earthquake or other
casualty; (g) failure, delay or inability of City 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.
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11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached
this Agreement if it:
a) practices, or attempts to practice, any fraud or deceit upon City; or
willfully violates any order, ruling or decision of any regulatory or
judicial body having jurisdiction over the Property or the Project,
provided that Developer may contest any such order, ruling or
decision by appropriate proceedings conducted in good faith, in
which event no breach of this Agreement shall be deemed to have
occurred unless and until there is a final adjudication adverse to
Developer; or
b) fails to make any payments required under this Agreement within
five (5) business days after City gives written notice to Developer
that the same is due and payable; or
c) breaches any of the other provisions of this Agreement and fails to
cure the same within thirty (30) days after City gives written notice
to Developer of such breach (or, if the breach is not able to be
cured within such thirty (30) day period, Developer fails to start to
cure the same within thirty (30) days after delivery of written notice
by City of such breach or fails to thereafter diligently prosecute the
cure to completion).
11.2 Default by City. City shall be in breach of this Agreement if it breaches
any of the provisions of this Agreement and fails to cure the breach within
thirty (30) days after Developer gives written notice to City of the breach
or, if the breach is not able to be cured within such thirty (30) day period,
City fails to start to cure the same within thirty (30) days after delivery of
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. Each party shall have any and all remedies for
breach of this Agreement that may be available under applicable law.
Additionally, the Parties acknowledge that remedies at law, including
without limitation monetary damages, would be inadequate for breach of
this Agreement by any Party due to the size, nature and scope of the
Project. The Parties also acknowledge that it would not be feasible or
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possible to restore the Property to its natural condition once
implementation of this Agreement has begun.
Consequently, the remedies for breach of this Agreement by either party
shall include injunctive relief and/or specific performance.
In addition, if Developer is in default under this Agreement, City shall have
the right to withhold the issuance of building permits to Developer from the
date that the notice of violation was given pursuant to Section 11.3 hereof
until the date that the breach is cured as provided in the notice of violation.
12. Mortgage Protection. If City gives notice to Developer of a breach, City shall
send a copy of the notice to each holder of record of any deed of trust on the
portion of the Property in which Developer has a legal interest ("Financier"),
provided that the Financier has given prior written notice of its name and mailing
address to City and the notice makes specific reference to this section. The
copies shall be sent by United States mail, registered or certified, postage
prepaid, return receipt requested, and shall be deemed received upon the third
3rd) day after deposit.
Each Financier that has given prior notice to City pursuant to this section shall
have the right, at its option and insofar as the rights of City are concerned, to
cure any such breach within eighteen (18) days after the giving of the notice by
City. If such breach cannot be cured within such time period, the Financier shall
have such additional period as may be reasonably required to cure the same,
provided that the Financier gives notice to City of its intention to cure and
commences the cure within eighteen (18) days after giving of the notice by City
and thereafter diligently prosecutes the same to completion. City shall not
commence legal action against Developer by reason of Developer's breach
without allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be binding and
effective against the Financier and every owner of the Property, or part thereof,
whose title thereto is acquired by foreclosure, trustee sale or otherwise; provided,
however, Financier and such owner shall not be responsible for any matters that
occurred prior to their acquisition of the Project.
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
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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.
15.1 Exemption for Amendments of Project Approvals. No amendment to a
Project Approval or Subsequent Approvals shall require an amendment to
this Agreement and any such amendment shall be deemed to be
incorporated into this Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent with this Agreement
and does not alter the permitted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the
Project Approvals or Subsequent Approvals.
16. Developer Indemnification. Developer shall indemnify, defend with counsel
approved by City, and hold harmless City and its officers, employees and agents
from and against any and all losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or resulting in any way
from, Developer's performance pursuant to this Agreement.
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, or any Project Approval or Subsequent Approval or
modifications thereto, or any other subsequent entitlements for the project and
including any related environmental approval.
17. Time of Essence. Time is of the essence for each provision of this Agreement of
which time is an element.
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18. Operative Date. As described in Section 1.6 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 seven (7)
years commencing on the Operative Date or until one year after the issuance of
the final building permit for occupancy of the last building of the Project
whichever occurs last, unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein. 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; (ii) density, parking and other physical aspects of
the Project construction in accordance with this Agreement, the Affordable
Housing Agreement, and RPD 2012-02.
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
Agreement from the public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
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 "D" 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.
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23. Severability. If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
24. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as
an agent of any of the other Parties in any respect. Nothing contained herein or
in any document executed in connection herewith shall be construed as creating
the relationship of partners, joint ventures or any other association of any kind or
nature between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and entered into for the
sole benefit of the Parties and their successors in interest. No other person shall
have any right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the County of
Ventura by the City Clerk of City within the period required by Chapter 15.40 of
the Moorpark Municipal Code of City or any successor thereof then in effect.
27. Cooperation Between City and Developer. City and Developer shall execute and
deliver to the other all such other and further instruments and documents as may
be necessary to carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the various sections and
subsections of this Agreement are for convenience of reference only, and they
shall not constitute a part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this Agreement be
found to be in conflict with any provision of the 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
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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.
IN WITNESS WHEREOF, Essex Moorpark Owner, L.P., and City of Moorpark
have executed this Development Agreement on the date first above written.
CITY OF MOORPARK
Lth)4ke S. Parvin
or
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership,
Its general partner
By: Essex Management Corporation
a California corporation,
its general partner
By:
The: cotivf-
vi41-CC., c.2/
Print lame: "TD kr CIA04.
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12853-0018\2044326v1.doc 182
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Mateo
On April 11, 2017 before me, Sandi A. Cabral, Notary Public
insert name and title of the officer)
personally appeared John Eudy
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument the
person(s), or the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
r SANDI A.CABRAL
IOWA ission# 142WITNESSmyhandandofficialseal. C0mm21327, NotaryPublic California sZzSnMateoCountyt
Comm. Expires Feb 9,2020 A
Signature 1"—N---\_'.—\ Seal)
183
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Z:M%9 CITY OF MOORPARK
gilt
o , 799 Moorpark Avenue,Moorpark,California 93021 I Phone(805)517-6200 I Fax(805) 532-2205
4p"
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A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK
On this 17th day of April in the year 2017, before me, Maureen Benson, City Clerk of
the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal
idea-vs,
Maureen Benson
City
and O
Cro a
JANICE S.PARVIN ROSEANN MIKOS,Ph.D. DAVID POLLOCK KEN SIMONS MARK VAN DAM
Mayor Councilmember Councilmember Councilmember Councilmember 184
EXHIBIT "A"
LEGAL DESCRIPTION
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 200507210178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel
1A.
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185
EXHIBIT "B"
LEGAL DESCRIPTION OF CITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document
No. 20050503-0108315 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5
Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30,
2009 as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described
line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-
03, distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel
1A.
12853-0018\2044326v1.doc
186
EXHIBIT "C"
FORM OF REAL ESTATE PURCHASE AGREEMENT
Attached.)
12853-001812044326v1.doc
187
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS
this"Agreement")is dated as of 2017,and is entered into by and between
the CITY OF MOORPARK("Buyer"),and ESSEX MOORPARK OWNER,L.P., a
California limited partnership ("Seller"). Upon execution of this Agreement by Buyer,Buyer
shall promptly deliver a copy of this executed Agreement to Seller.
RECITALS
A. Seller is the owner of the land described on Exhibit"A"and the improvements (if
any)thereon(collectively,the"Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to sell the
Property to Buyer.
C. Buyer and Seller are parties to the certain Development Agreement dated
2017(the"Development Agreement") and this Agreement is being executed
as a condition of and in accordance with the Development Agreement.
NOW, THEREFORE, in consideration of the Independent Consideration set forth in
Section 1.2.2 below,and for other valuable consideration,the receipt and sufficiency of which
are hereby acknowledged,Buyer and Seller hereby agree as follows:
1.SALE AND PURCHASE PRICE.
1.1 Sale and Purchase. Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property upon the terms and conditions hereafter set forth.
1.2 Purchase Price.
1.2.1 The purchase price("Purchase Price") for the Property shall be
One Dollar($1.00).
1.2.2 Independent Consideration. Notwithstanding anything in this
Agreement to the contrary, upon execution of this Agreement by Buyer, One Hundred and
No/100 Dollars ($100.00) shall be delivered by Buyer to Escrow Agent for delivery to Seller as
non-refundable independent contract consideration(the"Independent Consideration"),which
is in addition to the Purchase Price,and which amount has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement and for the rights and
privileges granted to Buyer herein,including,without limitation,any and all rights granted to
Buyer to terminate this Agreement during certain periods hereunder. If Buyer elects to terminate
this Agreement for any reason other than Seller's default, Seller shall retain the Independent
Consideration. The Independent Consideration shall not be applicable towards the Purchase
Price.
188
2. TITLE.
2.1 General. Title to the Property shall be conveyed by a grant deed in the
form attached hereto as Exhibit"B"and shall be evidenced by a CLTA Standard Coverage Form
of Owner's Policy of Title Insurance(or an ALTA Extended Coverage Form Policy,if Buyer
elects such coverage as provided in Section 2.3 hereof) ("Title Policy"), and the extra cost of any
such ALTA coverage shall be borne by Seller as described in Section 4.9 below. The Title
Policy shall be issued by First American Title Company, 1737 North First Street, Suite 500, San
Jose, CA 95112,Title Officer: Michael D. Hickey("Title Company"),with liability in the full
amount of the Purchase Price, insuring title to the Property as vested in Buyer,free and clear of
all liens and encumbrances and other matters affecting title to the Property, except the utility
easement described in Section 6.23 of the Development Agreement(the"Utility Easement")and
other title exceptions which Buyer has approved in writing(which shall constitute"Approved
Title Exceptions")except that real property taxes and assessments shall be prorated.
Seller may claim a refund of property taxes in the event any property taxes paid
are allocable to the period after the closing. Buyer, as a municipal corporation,is exempt from
property taxes.)
2.2 Acts After Date of Agreement; City Access. During the period from the
date of this Agreement through the Close of Escrow, except for the Utility Easement described in
Section 2.1 above and the Access Easement described in this Section 2.2, Seller shall not record
or permit to be recorded any document or instrument relating to the Property or physically alter
the Property or permit or cause to be altered without the prior written consent of the Buyer,
which consent may be withheld in Buyer's sole and absolute discretion.
Notwithstanding the foregoing, after the date of this Agreement and ending upon
the conveyance of the Property to Buyer pursuant to this Agreement, Seller may use the Property
for the storage of construction debris,the storage of construction related materials and supplies,
and the deposit of dirt excavated or otherwise removed from the construction site on the Seller's
property to the extent permitted by Section 7. 10 of the Development Agreement. The restoration
of the Property by Seller prior to the Close of Escrow shall be governed by Sections 6.29 and
7.10 of the Development Agreement (and Seller shall comply therewith). Contemporaneously
with the execution of this Agreement,Buyer and Seller shall enter into the Easement Agreement
attached hereto as Exhibit"C"with respect to the portion of the Property more particularly
described in the Easement Agreement pursuant to which Buyer may use the property described
in the Easement Agreement for the uses described therein including installation of a fence and
stockpiling dirt on the Property to the extent permitted therein and by Section 7.10 of the
Development Agreement.
3. NO REPRESENTATIONS BY SELLER("AS IS" SALE).
3.1 Buyer acknowledges that Seller is making no representations or warranties
about the Property, express or implied;provided,however,that Buyer does not waive Seller's
obligations under Section 2.2 and Buyer does not waive Seller's obligations under applicable law
to disclose to Buyer all material facts known to Seller about the Property (including facts in the
Natural Hazard Disclosure Statement described below, whether or not required under applicable
189
law). Subject to the foregoing and Section 2.2,upon the Close of Escrow,Buyer shall take title
to the Property in its then current"AS IS"condition,subject to Seller's obligations under Section
6.29 of the Development Agreement. Notwithstanding California Civil Code Section
1103.1(a)(9), Seller shall deliver to Buyer,with reasonable diligence after the execution of this
Agreement and at Seller's cost,a Natural Hazard Disclosure Statement(described in California
Civil Code Section 1103.2).
4. ESCROW.
4.1 Agreement to Constitute Escrow Instructions. This Agreement shall
constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for
that purpose.
4.2 Escrow Holder. The escrow shall be opened with First American Title
Insurance Company, 2901 North Ventura Road, Suite 175,Ventura,CA 93036 ("Escrow
Holder"),within five(5)business days after the execution of this Agreement by Buyer and Seller
depositing an executed copy or executed counterparts of this Agreement with Escrow Holder.
This document shall-be considered as the escrow instructions between the parties,with such
further instructions as Escrow Holder requires in order to clarify the duties and responsibilities of
Escrow Holder.
4.3 Close of Escrow. For the purposes of this Agreement, "Close of Escrow"
shall be the date on which a grant deed for the Property in favor of Buyer is recorded in the
Official Records of the Ventura County Recorder's Office. Provided all of Seller's and Buyer's
obligations to be performed on or before Close of Escrow have been performed and all the
conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow shall
close on or before the date that is six(6)months after the date on which the final Certificate of
Occupancy for the Project is issued("Closing Date"). All risk of loss or damage with respect to
the Property shall pass from Seller to Buyer at the Close of Escrow. Possession of the Property
shall be delivered to Buyer upon the Close of Escrow.
4.4 Seller Required to Deliver. Before the Close of Escrow, Seller shall
deposit into escrow the following:
4.4.1 Intentionally omitted
4.4.2 A grant deed conveying the Property to Buyer,in the form attached
hereto as Exhibit"B", duly executed by Seller and acknowledged(the"Grant Deed");
4. 4.3 A California 593 certificate and federal non-foreign affidavit(with
respect to Seller);
4. 4.4 Any other documents reasonably required by Escrow Holder or the
Title Company to be deposited by Buyer to carry out this escrow.
4.5 Buyer Required to Deliver. On or before the Close of Escrow, Buyer shall
deposit into escrow the following(properly executed and acknowledged, if applicable):
190
4.5.1 An executed and acknowledged"Certificate of Acceptance" in the
form attached to the Grant Deed(attached hereto as Exhibit"B");
4.5.2 The Purchase Price; and
4.5.3 Any other documents reasonably required by Escrow Holder to be
deposited by Buyer to carry out this escrow.
4.6 Conditions to the Close of Escrow. Escrow shall not close unless and until
both parties have deposited with Escrow Holder all sums and documents required to be deposited
as provided in this Agreement. Additionally, Buyer's obligation to proceed with the transaction
contemplated by this Agreement is subject to the satisfaction of all of the following conditions
precedent,which are for Buyer's benefit and may be waived only by Buyer:
4.6.1 The Building Department of Buyer shall have issued a final
Certificate of Occupancy for the Project described in the Development Agreement.
4.6.2 Seller shall have performed all agreements to be performed by
Seller hereunder.
4.6.3 As of the Close of Escrow,the Property shall be in the a condition
reasonably similar to the condition it was in when the parties executed the Development
Agreement, subject to Section 6.29 of the Development Agreement; and
4.6.4 Title Company shall have issued or shall have committed to issue
the Title Policy to Buyer, for the amount of the Purchase Price, showing fee title to the Property
to be vested in Buyer subject only to the Approved Title Exceptions.
If any of the conditions to Close of Escrow are not timely satisfied for a reason
other than a default of Buyer or Seller under this Agreement, and this Agreement is terminated,
then upon termination of this Agreement,Escrow Holder shall promptly return to Buyer all funds
and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to
Seller all funds and documents deposited by Seller in escrow and which are held by Escrow
Holder on the date of the termination(less, in the case of the party otherwise entitled to such
funds,however,the amount of any cancellation charges required to be paid by such party under
Section 4.11 below).
4.7 Recordation of Grant Deed; Delivery of Funds and Possession. Upon
receipt of the funds and instruments described in this Section 4,Escrow Holder shall cause the
Grant Deed to be recorded in the office of the County Recorder of Ventura County,California.
Thereafter,Escrow Holder shall deliver the proceeds of this escrow(less appropriate charges)to
Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all
occupants.
4.8 Prorations. Property taxes shall not be prorated as Buyer is exempt from
property taxes; Seller shall apply for a refund, if Seller has paid property taxes that are allocable
to the period after the Close of Escrow. All property assessments shall be prorated between
191
Buyer and Seller as of the Close of Escrow based on the latest available tax information. All
prorations shall be determined on the basis of a 360-day year.
4.9 Costs of Escrow. Seller shall pay the premium for the Title Policy
including the cost of extended coverage and the cost of any survey obtained by Buyer in
connection with such extended coverage, and Seller's reimbursement of survey costs shall be a
condition to the Close of Escrow). The escrow fees,the recording costs(if any), and any other
closing costs or charges not expressly provided for herein shall be shared equally by the parties.
4.10 Brokers. Buyer and Seller represent to one another that no broker or
finder has been engaged by it in connection with the transaction contemplated by this
Agreement,or to its knowledge is in any way connected with such transaction. Each party
covenants and agrees that any broker fee or commission,which may be due or payable in
connection with the closing of the transaction contemplated by this Agreement through its
dealings with that party, shall be borne solely by that party. Each party agrees to defend,
indemnify and hold harmless the other party and its respective employees, agents,
representatives, council members,attorneys,successors and assigns, from and against all claims
of any agent,broker, finder or other similar party arising from or in connection with its activities
relating to the sale of the Property to Buyer.
4.11 Escrow Cancellation Charges. In the event that this escrow shall fail to
close by reason of the default of either party hereunder,the defaulting party shall be liable for all
escrow and title cancellation charges. In the event that the escrow shall fail to close for any other
reason, each party shall pay one-half(1/2)of all escrow and title cancellation charges.
5. ATTORNEYS' FEES. In any action between Buyer and Seller seeking
enforcement of any of the terms and provisions of this Agreement,the prevailing party in such
action shall be awarded,in addition to damages,injunctive or other relief,its reasonable costs
and expenses,not limited to taxable costs,reasonable attorneys' fees and reasonable fees of
expert witnesses.
6. NOTICES. All notices,requests, demands and other communication given or
required to be given hereunder shall be in writing and sent by first class United States registered
or certified mail,postage prepaid, return receipt requested, or sent by a nationally recognized
courier service such as Federal Express,duly addressed to the parties as follows:
To Seller: Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attention: John Eudy and Jordan Ritter
And
192
Essex Moorpark Owner, L.P.
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Attention: Bob Linder
To Buyer: City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Manager
Delivery of any notice or other communication hereunder shall be deemed made on the
date indicated in the return receipt or courier's records as the date of delivery or as the date of
first attempted delivery, if sent by mail or courier service. Any party may change its address for
purposes of this Section by giving notice to the other party as herein provided.
7. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned
by either party without the prior written consent of the other party.
8. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the
parties hereto with respect to the matters contained herein,and all prior or contemporaneous
agreements or understandings, oral or written,pertaining to any such matters are merged herein
and shall not be effective for any purpose. No provision of this Agreement may be amended,
supplemented or in any way modified except by an agreement in writing signed by the parties
hereto or their respective successors in interest and expressly stating that it is an amendment of
this Agreement.
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original,but all of which shall constitute one and the
same instrument.
10. EMAIL DELIVERY. This executed Agreement(and executed counterparts of
this Agreement),may be delivered by email.
11. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
12. THIRD PARTIES. Nothing contained in this Agreement,expressed or implied, is
intended to confer upon any person, other than the parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
13. SEVERABILITY. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a
court of competent jurisdiction, such invalidity,illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such invalid,illegal or
unenforceable provision had never been contained herein,unless such invalidity, illegality or
unenforceability materially affects the economic terms of the transactions contemplated by this
Agreement or the ability of either party to perform its obligations under this Agreement. In such
case,.either party may terminate this Agreement and the escrow upon written notice to the other
party given no later than ten(10)business days after the party giving such notice becomes aware
193
of such invalidity, illegality or unenforceability. In the event of such termination, all funds
deposited with Escrow Holder by Buyer and any interest accrued thereon shall be returned to
Buyer.
14. ADDITIONAL DOCUMENTS. Each party hereto agrees to perform any further
acts and to execute, acknowledge and deliver any further documents that may be reasonably
necessary to carry out the provisions of this Agreement.
15. AUTHORITY OF CITY MANAGER. The City Manager of Buyer may give any
and all notices, consents and terminations hereunder on behalf of Buyer provided they are in
writing.
16. DUE AUTHORIZATION/EXECUTION. Upon execution hereof,each party
shall promptly provide to the other party reasonable evidence of its due authorization of this
Agreement.
194
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first above written.
SELLER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP,L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print.Name:
Title:
BUYER:
CITY OF MOORPARK
By:
Janice S. Parvin
Mayor
Attest:
Maureen Benson,City Clerk
APPROVED AS TO FORM:
Kevin G. Ennis,City Attorney
195
EXHIBIT"A"
LEGAL DESCRIPTION OF THE PROPERTY
All of Parcel lA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California,recorded May 3,2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County,being a portion
of Lot"T",Tract No. "L",Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records(Maps)in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No.20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel lA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1s` Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A.
196
EXHIBIT"B"
FORM OF GRANT DEED
Attached.)
197
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN:
SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant.Deed is exempt from Recording Fees pursuant
to California Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
FOR VALUABLE CONSIDERATION,receipt of which is hereby acknowledged the
ESSEX MOORPARK OWNER,L.P., a California limited partnership("Grantor")hereby
grants to the CITY OF MOORPARK("Grantee"),the land and located in the County of
Ventura, State of California, more particularly described on Exhibit A attached hereto and
incorporated herein by reference and all improvements thereon(collectively,the"Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth
below.
Dated: 201
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP,L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
198
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness,accuracy, or validity of the document.
STATE OF CALIFORNIA
COUNTY OF
On 20 before me,Notary
Public,personally appeared who proved to
me on the basis of satisfactory evidence to be the person(s)whose name(s)is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
affix seal in above space)
199
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
All of Parcel lA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California,recorded May 3,2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County,being a portion
of Lot"T", Tract No. "L",Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel lA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38' 32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A.
200
CERTIFICATE OF ACCEPTANCE
California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant Deed
dated 2017, from Essex Moorpark Owner, L.P. to the City of Moorpark, which is a
political corporation, is hereby accepted by the undersigned officer on behalf of the City of
Moorpark pursuant to the authority conferred by action of the City of Moorpark on
2017,and the grantee consents to recordation thereof by its duly authorized officer.
Dated: 2017
Steven Kueny,
City Manager
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached,and not the truthfulness,
accuracy,or validity of that document.
State of California
County of
On before me,
insert name and title of the officer)
Notary Public,personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s)on the instrument
the person(s), or the entity upon behalf of which the person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that
the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
201
EXHIBIT "C"
FORM OF EASEMENT
Attached.)
202
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attn: Legal
Space Above For Recorder's Use)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (the"Agreement") is entered into as of
2017,by and between the City of Moorpark, a municipal corporation("Grantee"),
and Essex Moorpark Owner, L.P., a California limited partnership ("Grantor").
RECITALS
Grantor is the owner of the real property located in the City of Moorpark, County of Ventura,
State of California, as more particularly described in Exhibit"A" attached hereto and
incorporated herein by reference(the"Property").
Grantee and Grantor entered into a Development Agreement dated as of
2017 (the "Development Agreement"), and an Agreement for Purchase and Sale and
Escrow Instructions dated as of 2017(the"Purchase Agreement").
Grantee requires access to a certain area of the Property for itself, its employees, its contractors,
and any and all permittees and invitees of Grantee and any and all of their respective
p-iinittees and invitees, including,without limitation, any third party developer and/or its
agents, contractors and subcontrators, and all of their respective agents, employees and
representatives (collectively,the"Grantee's Agents")prior to the closing of the purchase
and sale and conveyance of the Property to Grantee in accordance with the Purchase
Agreement for the purpose of stockpiling soil on the area shown on Exhibit"B"hereto
the"Stockpile Area").
Grantor desires to grant to Grantee a exclusive access easement for Grantee and Grantee's
Agents to enter the Stockpile Area and an easement for the limited purpose of stockpiling
soil thereon and fencing the Stockpile Area. Such soil shall be subject to removal
pursuant to the terms of this Agreement.
In consideration of Grantee being granted access to the Property as described in this Agreement,
Grantee and Grantor hereby agree as follows:
o Incorporation of Recitals, Capitalized Terms. The Recitals are incorporated
herein as part of this Agreement. In addition, capitalized terms not otherwise defined herein or
in the Recitals shall have the meaning set forth in the Development Agreement and Purchase
Agreement.
203
o Grant of Easement. Grantor hereby grants to Grantee for the benefit of Grantee
and Grantee's Agents, a non-assignable but exclusive easement(the"Easement")to enter the
Stockpile Area and to use the Stockpile Area for the sole purpose of depositing and storing of
clean, imported soil (including the right of access for all necessary personnel, equipment and
materials but excluding any right to take any other action on,in, over,under, or around the
Stockpile Area) and fencing the Stockpile Area and for no other uses or purposes. Grantee and
Grantee's Agents shall not use any other portion of the Property in any manner which impedes,
interferes with, disrupts, or increases the cost of any grading, construction access, construction,
excavation, construction staging, the storage of construction materials and supplies, or the
stockpiling of soil and other materials by Grantor on such other portion of the Property. If
Grantor, in Grantor's reasonable judgment, determines that Grantee has breached the covenants
in the preceding sentence, Grantor shall have the right to suspend Grantee's access to the
Stockpile Area from the Property until the breach has been cured to Grantor's reasonable
satisfaction.
o Termination. The Easement and this Agreement shall automatically terminate
on the earliest of(i)the date which is six(6)months after the date on which the final certificate
of occupancy is issued for the Property, if escrow closes pursuant to Section 4.3 of the Purchase
Agreement, (ii) any earlier termination of Purchase Agreement unless resulting from default
thereunder by Grantor, or(iii)the date which is twelve(12)months from the date on which the
final certificate of occupancy is issued for the Property, if escrow does not close pursuant to
Section 4.3 of the Purchase Agreement(collectively, the"Termination Date")unless escrow
does not close due to a default by Grantor under the Purchase Agreement;provided,however,
Grantee's indemnity and other obligations under this Agreement shall survive any such
termination.
o Removal Obligation. Not later than the thirty(30) days following the
Termination Date (unless terminated pursuant to subsection(3)(i) above), Grantee shall remove
all equipment;materials, and stockpiled soil brought on to the Property,the Stockpile Area, or
both,by or at the direction of Grantee. Grantee, at its sole cost and expense, shall promptly
restore the Property, the Stockpile Area, or both, to the condition that existed thereon prior to
Grantee's or Grantee's Agents entry on to the Property, the Stockpile Area, or both. In the event
that Grantee fails, within the time required by this Section 4,to restore the Property,the
Stockpile Area, or both, to the condition that existed thereon prior to Grantee's and Grantee's
Agents entry on to the Property,the Stockpile Area, or both, Grantor may restore the Property,
the Stockpile Area, or both to such condition and Grantee shall reimburse Grantor for all costs
and expenses incurred by or on behalf of Grantor in connection therewith.
o Hazardous Materials. Grantee shall take all actions necessary and required to
assure that any and all soil brought to the Property(whether by Grantee or Grantee's Agents) for
placement in the Stockpile Area shall not contain or be affected by any"Hazardous Materials"
as defined below) such that(i)it cannot be lawfully placed for storage on the Property or(ii) it
would adversely impact soil, groundwater or environmental conditions present on or under the
Property or otherwise require response action by Grantor. The phrase"Hazardous Materials" as
used herein shall mean any flammable explosives,radioactive materials, asbestos in any form
which is friable or could become friable,hazardous waste, toxic substances or other related
materials whether in the form of a chemical, element, compound, solution,mixture or otherwise.
204
For the purpose of this Agreement,Hazardous Materials shall include,but not be limited to,
substances defined as "hazardous substances", "hazardous materials," "contaminants,"
pollutants," "hazardous wastes" or"toxic substances"(a) in(i)the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended by the
Superfund Amendments and Reauthorization Act 42 U.S.C. Section 9601 et seq., (ii)the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii)the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv)the Federal Water Pollution
Control Act, as amended, 33 U.S.C. Section 1251, et seq., (v)the Clean Air Act, 33 U.S.C.
Section 7401 et seq., (vi) the Toxic Substances Control Act, 15 U.S.C. Section 2601 et. seq., (vii)
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., (viii) Sections 25117 and 25316 of
the California Health& Safety Code, (ix) applicable state or local law, or(x)the rules, orders or
regulations adopted or proposed or in thepublications promulgated pursuant to said laws; or(b)
in any reported decision of a state or federal court.
o Grantee's Indemnity. Grantee, to the fullest extent permitted by law, shall be
solely responsible for and pay for any and all loss and/or damage (i)to the Property,the
Stockpile Area, or both(and any property adjoining the Property,the Stockpile Property, or
both), or(ii) arising out of or in connection with the use, storage or transport of Hazardous
Materials on the Property and/or Stockpile Area, including but not limited to the cost of any
remediation or third party claims related thereto, arising wholly or in part from or in connection
with the use of the Property,the Stockpile Area, or both,pursuant to (or in violation of)this
Agreement. Grantee shall keep the Property, the Stockpile Area, or both, free and clear of all
environmental liens,mechanics' and materialmen's liens and claims for labor and/or materials
arising out of any activity upon the Property, the Stockpile Area, or both by Grantee or Grantee's
Agents. Grantee shall protect, defend, indemnify and hold Grantor and its members,managers,
partners, agents, officers, directors, employees and affiliates ("Grantor Indemnified Parties") free
and harmless against all claims, liens, actions, losses, liabilities, damages, costs and expenses
including but not limited to reasonable attorneys' fees and costs and including any claims
arising in connection with the use, storage or transport of Hazardous Materials on the Property
and/or Stockpile Area, including,but not limited to, the cost of any remediation or third party
claims related thereto), collectively, "Claims") of whatever kind or nature, including,but not
limited to, consequential damages, arising in connection with the rights granted under or any
breach of Grantee's or Grantee's Agents covenants contained in this Easement except to the
extent caused by Grantor's gross negligence or willful misconduct. The foregoing
indemnification shall survive the termination of this Agreement.
o Compliance with Laws. Access to and use of the Property, the Stockpile Area,
or both,by Grantee and Grantee's Agents and others shall be in strict compliancewith all
applicable laws, statutes, ordinances,rules and regulations, including, without limitation,those
of the United States and the city, county and state in which the Property is located, and any
agency of any of the foregoing(the"Laws"), and Grantee shall defend, indemnify and hold
Grantor and its members, managers,partners, agents, officers, directors, employees and affiliates
free and harmless against all penalties, charges and damages including, without limitation,
consequential damages, costs and expenses (including, without limitation, attorneys' fees and
expenses) of whatever kind or nature, imposed for any violation or alleged violation by Grantee
or any Grantee Agent of any such Laws. Grantee shall be responsible for obtaining and
complying with the conditions and requirements of all permits and approvals required under all
205
applicable Laws in connection with Grantee and Grantee's Agents' activities on the Property, the
Stockpile Area, or both.
o Insurance. At its sole cost, Grantee shall either maintain its participation in the
insurance program administered by the California JPIA(which includes liability coverage of
1,000,000 per occurrence, with accrued aggregate limit of$1,000,000) or maintain equivalent
insurance, and will cause Seller to be named as additional insured thereunder, with respect to
Grantee's entry on and use of the Property. At its sole cost, Grantee shall deliver to Grantor
reasonable evidence of such insurance prior to entering the Property or the Stockpile Area.
o No Representations or Warranties Hereunder. Grantee understands that
neither Grantor nor any Grantor Indemnified Parties have made or make any representation or
warranty, express or implied, as to the suitability of the Property or the Stockpile Area for
Grantee's use in connection with the License granted under this Agreement. All information
provided by Grantor with respect to the Property or Stockpile Area has been provided as an
accommodation and solely for Grantee's use in connection with its performance of this
Agreement without any representation or warranty as to its accuracy or completeness. Neither
Grantor, nor any Grantor Indemnified Parties or their respective attorneys or advisors or any
other person will have any liability to Grantee or any of Grantee's Agents under this Agreement
for information provided or the exercise by Grantee or Grantee's Agents of any rights granted
either hereunder.
o No Waiver. It is understood and agreed that no failure or delay by Grantor in
exercising any right, power or privilege hereunder shall operate as a waiver thereof or the
exercise of any other right,power or privilege hereunder. The provisions of this Agreement may
not be waived or amended except by the written agreement of Grantor.
o Injunction. Grantee further understands and agrees that in the event of any
breach of this Agreement by Grantee or any of Grantee's Agents, Grantor would be irreparably
and immediately harmed and could notbe made whole by monetary damages. Accordingly,
Grantee hereby agrees that Grantor,in addition to any other remedy which it may have at law or
in equity, shall be entitled to injunctive relief to prevent breaches of this Agreement and/or
specific performance to compel compliance with this Agreement.
o Assignment. This Agreement is binding on the successors and assigns of the
parties hereto. Notwithstanding the foregoing, Grantee may not assign its rights hereunder
without the prior written consent of Grantor in its sole discretion.
o Miscellaneous. This Agreement and any and all matters arising under, from or
relating to this Agreement shall be governed by and construed in accordance with the internal
laws of the State of California without regard to choice of laws principles. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original, but all of
which, together, shall constitute one and the same instrument. A facsimile, scanned or
photocopy signature on this Agreement, any amendment or waiver hereto, or any notice
delivered hereunder shall have the same legal effect as an original signature. This Agreement
may not be amended or modified except in writing executed by the parties hereto.
206
signature page follows]
IN WITNESS WHEREOF,the parties hereto have executed this Agreement as of the day
and year first set forth above.
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership,
Its general partner
By: Essex Management Corporation
a California corporation,
its general partner
By:
Title:
Print Name:
Grantor Notice Information:
Essex Moorpark Owner, L.P.
do Essex Property Trust
1100 Park Place, Suite 200
San Mateo, Ca 94303
Attention: Legal Department
GRANTEE:
CITY OF MOORPARK,
a municipal corporation
By: I
Janice S. Parvin,
Mayor
Grantee Notice Information:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attn: City Manager
207
EXHIBIT "A"
LEGAL DESCRIPTION
OF THE PROPERTY
All of Parcel lA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County,being a portion
of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430- 00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd
Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A.
208
EXHIBIT "B"
STOCKPILE AREA
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209
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EXHIBIT "D"
MAP FOR RELOCATED POWER LINES
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12853-0018\2044326v1.doc
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EXHIBIT "E"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
ESSEX MOORPARK OWNER, L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
12853-0018\2044326v1.doc
213
EXHIBIT "F"
FORM OF AFFORDABLE HOUSING AGREEMENT
Attached.)
Exhibit F
Page 1 of 1
12853-0018\2044326v1.doc
214
Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, L.P.
Dated as of 2017
215
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be
effective as of 2017, regardless of the date of actual execution
hereof, and is by and between the CITY OF MOORPARK; a municipal corporation
City"), ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Owner"). •
RECITALS
A. The City and Owner have entered into a Development Agreement dated
recorded as Instrument No. in the Official
Records of the County of Ventura on the "Development
Agreement") pursuant to which Owner will .construct a residential development
consisting of 200 apartments on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPD"), and Zone Change No. 2004-04
ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively referred to as the
Project Approvals".
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that Owner and Affordable Housing
Owner maintain each and every one of the Affordable Units at all times in the same
manner as the market rate units, including, but not limited to the quality and
maintenance of flooring, window coverings, appliances, heating and air conditioning
systems, storage space and type, and the 'number and location of required parking
spaces.
E. The Development Agreement requires that this Affordable Housing
Agreement be executed by Owner and delivered to City for recording, and that this
Affordable Housing Agreement not be subordinate to any liens (except for property
taxes and assessments not yet due).
F. As permitted by the Development Agreement, Owner may apply for
approval of an air rights subdivision such that the Affordable Units may be conveyed to
and separately owned by a single entity affiliated with Owner (as described in the
Development Agreement) and used solely as affordable rental units in accordance with
this Agreement. Such affiliated entity is referred to herein as the "Affordable Housing
Owner".
216
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1. 1 Definitions. Capitalized terms used herein shall have the following
meanings.
Affordable Housing In Lieu Fee" shall mean the annual fee paid to the City in
exchange for the Owner and Affordable Housing Owner not being obligated to provide
four (4) additional Affordable Low Income Units in addition to the 50 Affordable Units
required by this Agreement.
Affordable Housing Owner" shall mean the single entity to which the sixteen (16)
Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax
exempt bond financing and low income housing tax credits are used with respect to the
Project described in Section 2.1 below; however, until Owner conveys such Affordable
Units to Affordable Housing Owner, and if Owner never conveys the Affordable Units to
Affordable Housing Owner, and to the extent of its ownership of the ten (10) Units
described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing
Owner" as well as the "Owner".
Affordable Rent" shall mean the rent described in Section 2.9, subject to
Section 2.10.
Affordable Units" shall mean the rent-restricted dwelling units for Low Income
Households, Very Low Income Households and Moderate Income Households
described in this Affordable Housing Agreement.
Agreement" shall mean this Affordable Housing Agreement.
City" shall mean the City of Moorpark, California, a municipal corporation.
County" shall mean Ventura County.
County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housing and Community
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by HCD
or if HCD discontinues such publication, then such reasonable replacement publication
as may be selected by City in good faith).
Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals, which requires the
Developer to construct the Project, and also requires that at least twenty percent (20%)
i.e., 40 units) of the total dwelling units in the Project be rented at an Affordable Rent to
Very Low Income households (i.e., 50% of County Median income) and Low Income
217
households (i.e., 80% of County Median Income) and an additional five percent (5%)
i.e. 10 Units) of the total dwelling units in the Project be rented at an Affordable Rent to
Moderate Income households (i.e. 120% of County Median income).
Development Agreement" shall mean that certain Development Agreement
dated 2017, recorded substantially concurrently herewith in the Official
Records of the County of Ventura.
HCD" shall mean the Department of Housing and Community Development
HCD) of the State of California.
Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined
below).
Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit. The household income amount for Lower Income households
shall be based on the amount most recently published by HCD as the Household
Income Limits for Ventura County ("HCD Income Limits") or such successor information
in the event the referenced published information is no longer available.
Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified •on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
Low Income Units" means Units rented to Low Income Households.
Moderate Income" shall mean a household income that does not exceed one
hundred twenty percent (120%) of the County Median Income, adjusted for household
size appropriate to. the Unit. The household income amount for Moderate Income
households for any year shall be based on the amount most recently published by HCD
as the Household Income Limits for Ventura County ("HCD Income Limits") or such
successor information in the event the referenced published information is no longer
available.
Moderate Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Moderate Income, adjusted for
household size.
Moderate Income Units" means Units rented to Moderate Income Households.
Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
218
Project" is the residential development described in RPD 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner or Affordable
Housing Owner and located on or used in connection with all such improvements and
all functionally related and subordinate facilities, and all improvements required by the
Project Approvals.
Project Approvals" is defined in Recital B above.
Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
Stabilization" shall mean the time at which the Project achieves ninety percent
90%) occupancy for ninety (90) consecutive days.
Term" shall mean from the date of recordation of this Agreement until the later
of: (i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no
residential occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
Units" shall mean residential dwelling units.
Utility Allowance" shall mean the utility allowance set forth in the chart attached
to this Agreement as Exhibit No. 2 and referred to in Section 2.9.
Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit. The household income amount for Very Low Income households shall be
based on the amount most recently published by HCD as the Household Income Limits
for Ventura County("HCD Income Limits") or such successor information in the event
the referenced published information is no longer available.
Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
219
1.2.3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose
affordability restrictions and household income restrictions on the
Affordable Units in the Project, specifically there shall be sixteen
16) Very Low Income Units, twenty-four (24) Low Income Units,
and ten (10) Moderate Income Units, all as more particularly set
forth on Exhibit No. 2.
B. However, Owner may obtain Federal low income housing tax
credits and tax-exempt bonds (collectively, "Affordable Housing
Financing") to finance the Project, which will require that forty (40)
of the Affordable Units be restricted for rent to Very Low Income
Households during the periods set forth in the Internal Revenue
Code, as the same may be modified by law applicable to the low
income housing tax credits (the "Compliance Period and Extend
Use Period") and applicable to the tax exempt bonds (the "Qualified
Project Period"). At the end of whichever is the last to expire of the
Compliance Period and Extended Use Period and the Qualified
Project. Period, Owner shall rent the ten (10) Moderate Income
Units to Low Income Households consistent with the requirements
of this Agreement. Upon the the last to expire of the Compliance
Period and Extended Use Period and the Qualified Project Period,
the provisions of this Agreement shall be applicable and the
number of Very Low Income Units, Low Income Units, and
Moderate Income Units shall be consistent with Section 2.1.A.
above and Exhibit No. 2.
At the time the Project is no longer required to comply with.
Affordable Housing Financing, the City, Owner and Affordable
Housing Owner shall in good faith, and consistent with applicable
law and this Agreement, prepare a plan to transition the Affordable
220
Units so that the number of Very Low Income Units, Low Income
Units, and Moderate Income Units in the Project is as required by
Section 2.1A above and Exhibit No. 2 and that there are Very Low
Income Households, Low Income Households, and Moderate
Income Households occupying the Affordable Units consistent with
Section 2.1.A. above and Exhibit No. 2. in the shortest possible
time.
2.2 Agreement to be Recorded; Priority. Owner and Affordable Housing
Owner represent, warrant, and covenant that they will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California, and that
this Agreement shall be senior in priority to any lien, encumbrance or other matter of
record except as expressly approved in writing by City. The Owner or Affordable
Housing Owner shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to
develop and operate the Project and Property as a multifamily residential rental property
and uses incidental thereto and for no other purposes. Owner and Affordable Housing
Owner agree that the Affordable Units shall have the same or better amenities (in type,
quality and number) as the market-rate units in the Project (as determined by the
Community Development Director) and shall be located as described on the site plan
attached to Exhibit No. 2. Such amenities for the Affordable Units shall include, without
limitation, air conditioning/heating, plumbing and electrical fixtures, garbage disposal,
flooring, cabinets, counter tops, trim, built-in dishwasher, clothes washer and dryer,
sinks, bathtub, solar or solar stub out, water heater, built-in oven, microwave, stove,
bathroom fan (the most quiet model), garage door openers, doors and door hardware,
and floor and window coverings (all to the same extent provided for the market rate
units). Owner and Affordable Housing Owner shall promptly notify City in writing upon
any relocation of an Affordable Unit under this Agreement (meaning change in the
designated/intended household income level, not an actual change in the fixed locations
of the Affordable Units, which constitute a separate subdivided parcel, and are fixed as
shown at the end of Exhibit No. 2), and each such notice shall include the basis for such
relocation and the location of such relocated Affordable Unit(s); however, the ten (10)
Moderate Income Units to be owned by the Owner of the market-rate Units shall be
randomly dispersed among its Units in the portion of the Project owned by the Owner
consistent with Exhibit No. 2. Owner and Affordable Housing Owner further agree not
to convert the Project or any part thereof to any type of common interest development,
for-sale condominiums, community apartments, planned development, stock
cooperative, hotel, motel, or any type of congregate care or assisted living facility (but
the foregoing shall not prohibit the air rights subdivision and conveyance described in
Recital F above). Owner and Affordable Housing Owner agree that they shall not
knowingly permit any of the Units in the Project to be used on a transient basis and shall
not rent any Unit for a period of less than thirty (30) days. At no time shall any of the
Affordable Units be rented to an employee, agent, officer, contractor of any owner of
any portion of the Property or Project or of any company affiliated with any such owner,
or to any such affiliated company.
221
2.4 INTENTIONALLY OMITTED
2. 5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and Affordable Housing Owner and approved by City which
approval shall not be unreasonably withheld, conditioned, or delayed ("Rules"). Owner
and Affordable Housing Owner shall submit such Rules to City during the Initial Rent-Up
for the City's approval, which will not be withheld, conditioned or delayed. Annually,
Owner and Affordable Housing Owner shall submit any amendments, modifications or
changes to such Rules to the City at least forty-five (45) days prior to their proposed
effective date and all of such amendments, modifications and changes shall be subject
to the City's prior written consent, which will not be withheld, conditioned or delayed. If
City does not consent, City shall specify the reasons in writing so that Affordable
Housing Owner can revise the amendment(s), modification(s) or change(s) and re-
submit them for City approval, which will not be withheld, conditioned or delayed. In
addition, Owner and Affordable Housing Owner shall submit to the City on an annual
basis a certification that the Rules previously submitted to City, as amended, remain in
effect (with a copy of the Rules and any amendments). If applicable, this Agreement
shall be consistent with any Extended Use Agreement entered into between Owner or
any affiliate of Owner and the California Tax Credit Allocation Committee.
2. 6 Single Owner. Except for the ten (10) Moderate Income Units (which will
be Low Income Units until the last to end of the Compliance Period and Extended Use
Period and the Qualified Project Period, as set forth in Section 2.1.B. above, and will be
owned by the owner of the market-rate Units), all of the Affordable Units shall be and
remain owned by the Affordable Housing Owner (an affiliate of the Owner of the market-
rate Units). Such ten (10) Units (Moderate, or Low Income until the last to end of the
Compliance Period and Extended Use Period or the Qualified Project Period) may be
owned by Owner but shall be subject to this Agreement. No Affordable Unit may be
sold separately.
2.7 Affordable Units Generally.
2.7.1 Allocation/Dispersal of Affordable Units. As set forth on Exhibit No.
2, the Affordable Units shall be randomly dispersed throughout the Project, and as
described in Section 2. 3 above, Owner and Affordable Housing Owner shall promptly
notify City in writing of any change in the designated income level of any Affordable
Unit.
2.7.2 Accessible Compliant Units. Four (4) of the nineteen (19) one-
bedroom one-bath affordable Low and Very Low Income units shall be compliant with all
laws regarding disabled persons (including, Without limitation, the Americans with
Disabilities Act) and shall be reserved for and occupied by persons eligible for such •
accommodations, to the extent there is a qualified accessible Low or Very Low Income
person ready to occupy such unit. Owner and Affordable Housing Owner shall maintain
a waiting list for the affordable accessible-compliant units, shall promptly deliver a copy
222
thereof to City and shall thereafter deliver a copy of the revised list to City whenever the
list changes. Should there be a qualified Low or Very Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner and Affordable Housing
Owner shall add such prospective tenant to the waiting list for the affordable accessible-
compliant units. At the earliest possible time a Low or Very Low Income non-accessible
compliant affordable unit becomes available, the non-accessible Low or Very Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy
the accessible compliant unit. Owner and Affordable Housing Owner shall include a
provision in the non-accessible compliant affordable lease for any accessible-compliant
affordable unit that the non-accessible Low or Very Low Income tenant agrees to be
relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible
compliant unit becomes available. While any of the four (4) affordable accessible-
compliant units are not being leased to disabled persons (due to unavailability of such.
persons to lease), the applicable Affordable Unit shall be leased in accordance with this
Agreement.
At all times, Affordable Housing Owner shall keep City informed in writing of the
income level applicable to each accessible compliant unit. The fixed locations of the
Affordable Units shall be as shown on the site plan attached to Exhibit No. 2.
The accessible compliant units shall be consistent with accessibility design
criteria established by the State of California, and Owner and Affordable Housing Owner
shall promptly make any changes to such units required by new laws or changes in
laws. Reasonable accommodation shall be made, as may be requested by specific Low
or Very Low Income disabled tenants in such units, to provide features such as smoke
alarms with flashing lights, for instance, if requested by hearing impaired Low or Very
Low Income tenants in an accessible compliant unit.
2.7.3 Affordable Housing. In Lieu Fee.
2. 7.3.1 In addition to the Affordable Units herein described,
Owner and Affordable Housing Owner shall pay (and be jointly and severally liable for)
a single annual in lieu fee for having irrevocably elected not to provide four (4)
additional Low Income units (the "Affordable Housing In Lieu Fee"). The modification of
affordability levels for Affordable Housing Financing purposes (as described in Section
2.1, 2.12 and Exhibit No. 2), shall not affect the foregoing.
2. 7.3.2 The Affordable Housing In Lieu fee shall initially be
Forty Seven Thousand Five Hundred and No/100 Dollars ($47,500.00) if paid on or
before January 1, 2019. If the initial payment is not paid by January 1, 2019, it shall
increase by two percent (2%) each year above the prior year amount. Similarly, all
subsequent annual payments shall increase by two percent (2%) of the previous year's
payment.
Payments shall be made on March 10 of the first calendar year in which one or
more residential unit in the Project has theretofore been occupied, and on or before
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March 10 of each subsequent calendar year. If March 10 falls on a Saturday, Sunday,
or City Holiday, then payment shall be due on the City's next business day. A late
payment charge (constituting liquidated damages) equal to ten percent (10%) of the
payment due shall be added to payments received three (3) days or more after the due
date,as stated herein or when a deficient check has been given for payment, and the
parties hereby stipulate and agree that it would be very difficult and impractical to
determine the damages suffered by City, as a public entity, due to late payments.
Payments received more than ten (10) days after the due date shall, in addition to the
ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the
due date through and including the date the payment is received by the City.
In the event of a sale, transfer, assignment of any type or any portion of the
Project or Property by Owner or Affordable Housing Owner to any other entity not
owned in whole or in part by Owner, the fee amount referenced above shall be
increased based on the new value of the Property as if it had been reassessed by the
Ventura County Assessor and not exempt from the payment of new property taxes. The
calculation shall provide the City 0.095% (equivalent to $950.00 per $1 million of
assessed value) of the assessed value or such higher percentage of the total new
property taxes if the City portion has been increased by action of the State of California
or by a statewide initiative or referendum. (For example, if the sale results in a value of
50,000,000.00 then the annual fee to the City would be $50,000,000.00 X .00095 =
47,500.00, or if the City portion of the property taxes has been increased by the State
of California on a statewide initiative or referendum then the amount would increase). In
the event the payment to the City under this calculation would be less than the Initial
Affordable Housing In-lieu Fee Amount, inclusive of any 2%. adjustments applied as of
the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount
shall continue until such time as the calculation in this paragraph would yield a higher
annual fee.
2. 7.4 Preference Policies. To the extent permitted by applicable state
and federal law, priority shall be granted to eligible City of Moorpark residents. A
waiting list for the Affordable Units shall be maintained from which vacancies shall be
filled. The waiting list shall be established through a fair process for the selection of the
next eligible households to fill the vacancies allowing for priority for City of Moorpark
residents to the extent permitted by applicable state and federal law. Details of this
process shall be submitted in writing to the City for review and approval prior to the
issuance of the first building permit for this project. Additionally, Affordable Housing
Owner shall submit to City an annual report, no later than January 30 of each calendar
year for the pervious calendar year, describing the vacancies filled from households on
the list, total vacancies filled and the number of households on the list.
2.7.5 Occupancy Reporting. As specified in Section 2.12, Owner and
Affordable Housing Owner will advise City on a quarterly basis in writing of the number
of Affordable Units occupied by Very Low, Low and Moderate Income Tenants by
delivery of a certificate in the form specified by the City, which is attached hereto as
Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City
of Moorpark resident who on the waiting list and was given priority. Any reporting
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schedule less frequent than quarterly must be expressly approved in writing by the City
Manager.
2.7.6 Unit Classification. An Affordable Unit occupied by a Very Low
Income Tenant, a Low Income Tenant, or a Moderate Income Tenant shall be deemed,
upon termination of occupancy by such tenant (whether voluntarily or involuntarily), to
be continuously occupied by a Very Low Income Tenant, a Low Income Tenant, or a
Moderate Income Tenant, as applicable, until re-occupied other than for a temporary
period (not to exceed 60 days), at which time the classification of the Unit shall be
redetermined (provided that upon such reclassification, Affordable Housing Owner must
remain in compliance with this Agreement). Owner and Affordable Housing Owner shall
use commercially reasonable efforts to prevent such temporary periods from exceeding
sixty (60) days. Owner and Affordable Housing Owner will also obtain and maintain on
file such Certifications of Tenant Eligibility in the form of Exhibit No. 3 attached hereto,
for each Very Low, Low and Moderate Income Tenant. Owner and Affordable Housing
Owner shall make a good faith effort to verify that the income declared by an applicant
in an income certification is accurate by reviewing any one or more of the following
documents, which shall be provided by the applicant:
a) A pay stub for the most recent pay period;
b) An income tax return for the most recent tax year;
c) An income verification form from the applicant's current employer;
d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
e) If the applicant is unemployed and has no tax return, another form
of independent verification is needed.
In addition to the above-referenced income certification, eligible Very Low and
Low Income applicants for the ADA compliant units shall submit a letter from a
physician or other document acceptable to the City, Owner and Affordable Housing
Owner which confirms the accessibility needs of the applicant.
2.7.7 Lease Provisions. The Owner and the Affordable Housing Owner
shall include provisions in all signed leases or rental agreements for all Affordable Units
which authorize the Owner or Affordable Housing Owner, as applicable, to immediately
terminate the tenancy of any tenant occupying an Affordable Unit where one or more of
such tenants have misrepresented any fact material to the qualification of such an
individual or household as a Very Low, Low or Moderate Income Tenant and/or for
qualification for occupancy of an Affordable Unit, and Affordable Housing Owner and
Owner shall reasonably enforce such termination rights (i.e., Affordable Housing Owner
or Owner, as applicable, shall exercise them and not waive them). Each lease or rental
agreement for an Affordable Unit shall also provide that the tenants of such Affordable
Unit shall be subject to annual certification or recertification of income, as required by
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the City, and shall be subject to rental increases in accordance with Section 2.10 of this
Agreement.
2.7.8 Management Diligence. Owner and Affordable Housing. Owner
shall use commercially reasonable efforts not to allow any rent-ready Affordable Unit to
remain vacant.
2.7.9 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner and
Affordable Housing Owner in writing of the name and phone number of such staff
person and any replacements. On or before the first day of February of each year
during the Term of this Agreement, commencing after the first residential occupancy of
the Project, Affordable Housing Owner and Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by
the larger of (a) or (b) below:
a) The percentage increase in the Consumer Price Index
during the prior year, which shall be determined by using the Consumer Price Index by
the U. S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all
items, for the Los Angeles/Riverside/Orange County metropolitan area. The calculation
shall be made by copying such CPI for the month of October to the CPI for the previous
October.
b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly
effective yield amounts paid by LAIF for the City's Pooled Money Investment Account
for the most recent four (4) calendar quarters divided by four (4).
In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result.
2.7.10 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner or
the Affordable Housing Owner for the lease or rental of the Affordable Units shall be
subject to review and approval by the City, the approval of which shall not be
unreasonably withheld, conditioned, or delayed. If the lease or rental agreement
provisions specified in this Section are not approved or disapproved within thirty (30)
days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 For initial rent-up only, for each ten (10) units rented in the Project
i.e., both Affordable Units and other units), at least two (2) must be Affordable Units
which comply with this Agreement.
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2.8.2 During the Initial Rent-Up, the Very Low Income Units occupied by
Very Low Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed sixteen (16) units (subject to Section 2.1 above).
2.8.3 .During the Initial Rent-Up, the Low Income Units occupied by Low
Income households, plus those Units held available for occupancy by such tenants,
shall be equal to or exceed twenty-four (24) units (subject to Section 2.1 above).
2.8.4 During the Initial Rent-Up, the Moderate Income Units occupied by
Moderate Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed ten (10) units (subject to Section 2.1 above).
2.8.5 In connection with the Initial Lease-Up of the Project, Owner and
Affordable Housing Owner will adopt outreach programs to locate qualified tenants for
the Project and shall establish such, procedures for occupancy, rental, and rent
grievances as may be reasonably required by the City. Not later than ten (10) days prior
to the commencement of marketing, Owner and Affordable Housing Owner shall
prepare and submit to the City for reasonable approval a marketing and outreach
program which shall contain, among other things, the following: how a potential tenant
would apply to rent a Unit in the Project, including where to apply, applicable income
limits and rent levels; support documentation needed such as pay stubs, tax returns, or
confirmation of disability, if applicable, a description of procedures Owner and
Affordable Housing Owner will follow to publicize vacancies in the Project, including
notice in newspapers of general circulation, including at least one Spanish-language
newspaper and mailing notices of vacancies to or contacting by telephone potential
tenants on the waiting list maintained by Owner and Affordable Housing Owner.
Notices shall also be given to organizations in Ventura County which provide referrals or
other services to persons with disabilities.
2.8.6 In the event that any Affordable Unit is rendered unfit for occupancy
including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner or Affordable Housing Owner, as applicable, shall pay the City a
single fee of $10 (which shall increase by $2 every five (5) years) per day until the
Affordable Unit is placed back in service except that such fee shall not be payable for so
long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build
the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of
the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons
for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
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2. 9.2 Monthly rent charged to Low Income Tenants shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance. "Family size appropriate
to the Unit", as shown on Exhibit No. 2 is defined in. Section 50052.5(h) of the California
Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2
bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Moderate Income Tenants shall be no
greater than thirty percent (30%) of one hundred and ten (110%) of County Median
Income, adjusted for family size appropriate for the Unit, Less the Utility Allowance.
Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section
50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom
unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667)
based on Apartment/Walk Up unit type as posted and updated annually by the Area
Housing Authority of the County of Ventura based on the following appliances/utilities to
be provided to the units:
Natural Gas— Heating, cooking, water heating
Water, Sewer, Trash, Other.Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or
future prudent refinancing of this project, utilizes definitions, sources of information, etc.,
other than those which have been herein defined and utilized in calculating Affordable
Rent, then the procedure or input which produces the lowest affordable rent, will prevail.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner and Affordable Housing Owner shall cause the income of
each Tenant of an Affordable Unit to be re-certified on an annual basis on the
anniversary date of each such tenant's initial rental date. This recertification shall be
submitted in writing to the City within thirty (30) days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by a Very Low, Low
or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent
calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
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2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Very Low Income Units and the Low Income Units rented to Very Low
Income Households, and at all times for the ten (10) Moderate Income Units regardless
of whether they are rented to Moderate Income Households or rented to Low Income
Households, the following shall apply:
2.12.1 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low
Income Tenant has increased above the maximum allowable household income level of
a Very Low Income Tenant, but remains equal to or below that of a Low Income
household, then, except as provided below in this Section 2. 12, the Owner or Affordable
Housing Owner, or both, as applicable, shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of sixty percent (60%) of the County Median Income for the size
household appropriate to the unit (less the utility allowance), upon sixty (60) days
written notice to the occupants thereof. In that event, the next available unit that was
previously .a Low Income Unit must be rented to (or held vacant and available for
immediate occupancy by) a Very Low Income household.
2.12.2 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low or
Low Income Tenant has increased above the maximum allowable household income of
a Low Income Tenant, to not more than Moderate Income, which is one hundred and
twenty percent (120%) of median income, then the Owner or Affordable Housing
Owner, or both, as applicable, shall not be required to evict the Tenant and the monthly
rent charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent
30%) of one hundred ten percent (110%) of the County Median Income for the size
household appropriate to the unit, less the utility allowance. In this event, the next
available unit that was previously a Moderate Income unit must be rented to or held
vacant and available for immediate occupancy by a Very Low or Low Income.
household, as the case may be, at an affordable rent (1/12 of 30% of 50% of Median
Income, in the case of a Very Low Income unit, or 1/12 of 30% of 60% of Median
Income, in the case of a Low Income unit, both of which are net of the utility allowance).
2.12.3 If, upon income re-certification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the income of a tenant occupying one of
the Affordable Units has increased and now exceeds that of a Moderate Income
household, the Tenant is no longer eligible to rent the unit, and the Owner or Affordable
Housing Owner, or both, as applicable, shall not increase the rent but shall provide
written notice to the Tenant to vacate the unit within six (6) months. If an appropriate
unit is available to substitute for said unit, and the "substitute unit" has not been one of
the Affordable Units, provided that said substitute unit is of the same configuration and
size as the unit currently occupied by the now ineligible Tenant, the Affordable Housing
Owner may request authorization from the City Manager or his/her designee to
substitute the like unit for the Affordable Unit, and cause the rent on the substitute unit
to be at the same level of affordability as the unit that was occupied by the formerly
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eligible Tenant, and the City Manager shall use good faith efforts to respond within thirty
30) days.
Notwithstanding the foregoing, any such Tenant shall have the right to request a
recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction
of income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period, the foregoing provisions shall not apply to the units rented to
Very Low Income Households, but shall continue to apply to the ten (10) Moderate Units
that are to be rented to Low Income Tenants during such period (and owned by the
entity which also owns the market rate Units). Until the last to end of the Compliance
Period and Extended Use Period or the Qualified Project Period, Owner and Affordable
Housing Owner shall comply with laws and regulations, and any separate/additional
recorded restrictions or "Regulatory Agreement" required by the Affordable Housing
Financing.
Owner and Affordable Housing Owner shall promptly deliver to City copies of all
Affordable Housing Financing regulatory agreements or similar agreements restricting
Units in the Project, and shall notify City and all affected tenants in writing of the
expiration of the Bond Period at least one (1) calendar year (but not more than fourteen
14) months) prior to expiration of the Compliance Period and Extended Use Period or
Qualified Project Period, whichever expires later, of any effect on the affordability level
of their Affordable Units.
Additionally, Owner and Affordable Housing Owner shall notify City in writing of
any re-syndication or extension of tax credit financing and any defeasance or
refinancing of bond financing as soon as they become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner and Affordable Housing Owner hereby agree that specific
enforcement of Owner's and Affordable Housing Owner's agreements to comply with
the allowable rent and occupancy restrictions of this Agreement is one of the reasons
for the City's issuing the Project Approvals and entering into the Development
Agreement.
2.13.2 Owner and Affordable Housing Owner further agree that, in the
event of any breach of such requirements, potential monetary damages to City, as well
as prospective Very Low, Low and Moderate Income Tenants, would be difficult, if not
impossible, to evaluate and quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner and Affordable
Housing Owner agree to the imposition of the remedy of specific performance against it
in the case of any event of default by Affordable Housing Owner in complying with the
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allowable rent, occupancy restrictions or any other provision of this Agreement. Nothing
herein shall impair City's rights to liquidated damages under Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2. 15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner and Affordable Housing Owner shall prepare
and submit to the City, on a quarterly basis, written reports, setting forth the rental
activity for the previous month, and the current total number of Affordable Units
occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner and Affordable Housing
Owner shall prepare and submit to the City, on a quarterly basis, not later than the 15th
day of each calendar quarter, a Certificate of Continuing Program Compliance in a form
substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and
percentage of Affordable Units in the Project which were occupied by Very Low, Low
and Moderate Income Tenants, or held vacant and available for occupancy by such
Tenants during said period; and (b) that to the knowledge of the Affordable Housing
Owner, no default has occurred under the provisions of this Agreement; and (c) such
other information as may be requested in writing by the City Manager.
2.15.3 Owner and Affordable Housing Owner shall prepare and submit to
the City, on an annual basis, a report in form and substance reasonably satisfactory to
the City, not later than March 31st of each year for the preceding calendar year,
summarizing the vacancy. rate of the Affordable Units in the Project on a month-to-
month basis for such calendar year.
2.15.4 Owner and Affordable Housing Owner shall also deliver to City from
time to time any other information about the Affordable Units and the rental thereof as
may be reasonably requested in writing by City within ten (10) days after any such
written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or the
Affordable Housing Owner or a single third-party management agent with demonstrated
ability to operate, and experience in operating, residential housing including restricted
affordable housing, in a manner that will provide decent, safe and sanitary residential
facilities to occupants thereof, including experience in complying with reporting
requirements and occupancy restrictions similar to those imposed upon the Project by
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the terms of this Agreement. (There may only be one manager for the entire Project at
any one time.)
3.2. 2 The Owner or the Affordable Housing Owner, directly or through an
affiliate, may be the "manager" of the Project. The Owner and the Affordable Housing
Owner may retain on-site personnel and other consultants and service providers to
assist Owner and the Affordable Housing Owner to operate the Project effectively and in
compliance with the provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner or Affordable Housing Owner seeks to
appoint a replacement management entity to manage the Project, they shall advise the
City of the identity of any such qualified management agent not later than thirty (30)
days prior to the effective date of such appointment. The Owner and the Affordable
Housing Owner shall also submit such additional information about the background,
experience and financial condition of any proposed management agent as is reasonably
requested by the City.
3.2.4 Upon the City's written request, the. Owner and the Affordable
Housing Owner shall cooperate with the City in an annual review of the management
practices and status of Project. The purpose of each annual review will be to enable the
City to determine if the Project is being operated and managed in accordance with the
requirements and standards of this Agreement.
3.3 Dav-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner, the Affordable. Housing Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to
the management agent.
3.3.2 There will be regular meetings as necessary between the Owner,
the Affordable Housing Owner and the management agent for the purpose of reviewing
policies, procedures, resident relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number
and email address of the management agent (so that City may contact the management
agent directly), and shall cause the management agent or its personnel to be available
on a twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner and Affordable Housing Owner shall
provide for adequate on-site staffing of management personnel to manage the Project in
a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner
shall provide such security services as may be necessary or appropriate for the Project.
All hiring of on-site personnel shall conform to applicable equal opportunity guidelines,
without regard to race, religion, color, national origin or sex. All hiring materials will
indicate that the Project is an "Equal Opportunity Employer." Employment grievances,
terminations and promotions will be conducted according to personnel policies and
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procedures which conform with equal opportunity laws. All personnel employed at the
Project will receive training specific to Owner's policies and procedures.
3. 5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner and Affordable Housing Owner hereby waive any rights they
might otherwise have to seek judicial review of such City actions to change the
development standards, General Plan designation and zoning to those development
standards and density of permitted development to that in existence prior to the
approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change
No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner and Affordable Housing Owner shall pay to City a single
community services fee of Eight Thousand Dollars ($8,000.00) increased by two
percent (2%) on each anniversary of the Operative Date (as defined in Section 18 of the
Development Agreement).
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner and Affordable Housing Owner
shall maintain and preserve the Project and the Property in good condition and repair
and in a prudent and businesslike manner. If any portion of the Project is damaged,
restoration of the damaged improvements shall be made by Owner and Affordable
Housing Owner to a condition as good as, existed prior to the damage. Owner and
Affordable Housing Owner shall complete promptly and in a good and workmanlike
manner any improvements which may now or hereafter be constructed as part of the
Project and pay when due all claims for labor performed and material furnished therefor.
Owner and Affordable Housing Owner shall comply with all laws, ordinances, rules,
regulations, covenants, conditions, restrictions, and orders of any governmental
authority now or hereafter affecting the conduct or operation of the Project and of their
businesses on the Project or any part thereof or requiring any alteration or improvement
to be made thereon. Owner and Affordable Housing Owner shall maintain grounds,
sidewalks, roads, parking, and landscaped areas in the Project (and on any adjacent
areas owned by either of them) in good and neat order and repair. Owner and
Affordable Housing Owner hereby agrees that City may conduct from time to time
through representatives of its own choice who are properly identified as agents of the
City, upon reasonable written notice and subject to reasonable security and safety
procedures and rights of tenants in possession, on-site inspections and observation of
such records of Owner and Affordable Housing Owner relating to the Project and the
Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. Owner and the Affordable
Housing Owner shall assure that each Affordable Unit .receives the same level of.
maintenance and repair and upgrades or improvements as all other units in the Project.
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The Owner and the Affordable Housing Owner shall conduct an ongoing maintenance
program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c.Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment
as well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry- rooms will be swept and
cleaned regularly and kept free of trash and other debris. Garbage removal will be
provided through arrangements with a contractor, consistent with applicable City
ordinances. The trash areas will be swept regularly and scrubbed with disinfectant
when necessary. Extermination services will be contracted with to provide pest control
consistent with high quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f.Interior painting and carpet cleaning or replacement in individual
apartment units . shall be based on need, substantiated by the annual physical
inspection, or as occupancy changes, or as the Owner and Affordable Housing Owner
or their management agent may otherwise deem necessary.
g. Owner and Affordable Housing Owner will employ a maintenance
work order procedure in the Project to adequately document requests for work and
promptness within which the work has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect
for the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
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6.1.1 Failure by the Owner or Affordable Housing Owner to duly perform,
comply with and observe the conditions of Project approval, conditions, terms, or
covenants of the Development Agreement or this Agreement, if such failure remains
uncured thirty (30) days after written notice of such failure from the City in the manner
provided herein or, with respect to a default that cannot be cured within thirty (30) days,
if the Owner or Affordable Housing Owner fails to commence such cure within such
thirty (30) day period or thereafter fails to diligently and continuously proceed with such
cure to completion. In no event shall the City be precluded from exercising remedies if
an Event of Default is not cured within ninety (90) days after the first notice of default is
given or such longer period as may be agreed upon by both parties in writing. If a
different period or notice requirement is specified under any other section of this
Agreement, then the specific provision shall control.
6.1.2 Failure by Owner and the Affordable Housing Owner to cure any
default under Section 2.15 within fifteen (15) business days after written notice of such
default by City.
6.1.3 Any representation or warranty contained in this Agreement or in
any application, financial statement, certificate, or report submitted to the City by Owner
or Affordable Housing Owner proves to have been incorrect in any material respect
when made, if such failure remains uncured thirty (30) days after written notice of such
failure from City to Owner in the manner provided herein or, with respect to a default
that cannot be cured within thirty (30) days, if the Owner and the Affordable Housing
Owner fail to commence such cure within such thirty (30) day period or thereafter fail to
diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner or Affordable Housing Owner to be bankrupt or insolvent; (b)
approving as properly filed a petition seeking reorganization of Owner or.Affordable
Housing Owner or seeking any arrangement on behalf of the Owner under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States
or of any state or other jurisdiction which is not dismissed within sixty (60) days after
filing; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors
of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of its
properties which (or who) is not discharged within sixty (60) days after its appointment;
or (d) directing the winding up or liquidation of the Owner or Affordable Housing Owner,
providing, however, that any such decree or order described in any of the foregoing
subsections shall have continued unstayed or undischarged for a period of ninety (90)
days.
6.1.5 The Owner or Affordable Housing Owner shall have assigned its
assets for the benefit of its creditors or suffered a sequestration or attachment or
execution on any substantial part of its property, unless the property so assigned,
sequestered, attached, or executed upon shall have been returned or released within
ninety (90) days after such event (unless a lesser time period is permitted for cure
hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If
the Owner or Affordable Housing Owner is diligently working to obtain a return or
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release of the property and the City's interest hereunder is not imminently threatened in
the City's reasonable business judgment, then the City shall not declare a default under
this subsection.
6.1.6 The Owner or Affordable Housing Owner shall have voluntarily
suspended its business for a period of.thirty (30) consecutive days or dissolved and a
subsequent owner has not assumed the obligations of Owner or Affordable Housing
Owner (if applicable) in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or
encumbrance on the Property (other than the Development Agreement) and all liens
and encumbrances shall be subordinate and subject to this Agreement, regardless of
actual date of recordation. The City shall consider in good faith, reasonable
modifications of this Agreement typically required by secured lenders and commonly
known as "mortgagee protection" provisions; however, in no event shall any such
modification shorten the term of this Agreement or contain or require any subordination
of provisions of this Agreement.
6.2.2 Owner and Affordable Housing Owner shall pay and promptly
discharge when due, at their cost and expense, all liens, encumbrances and charges
upon their respective interests in the Project or the Property, or any part thereof or
interest therein (except the lien of any mortgage, deed of trust or other recorded
instrument securing any construction or permanent financing for the Project, which
shall, in any event, be junior and subordinate to this Agreement), provided that the
existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or
right thereto shall not constitute a violation of this Section if payment is not yet due
under the contract which is the foundation thereof and if such contract does not
postpone payment for more than forty-five (45) days after the performance thereof.
Owner and Affordable Housing Owner shall have the right to contest in good faith the
validity of any such lien, encumbrance or charge, provided that within ten (10) days after
service of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner
or Affordable Housing Owner shall deposit with City a bond or other security reasonably
satisfactory to City in such amounts as City shall reasonably require, but no more than
the amount required to release the lien under California law and provided further that
Owner or Affordable Housing Owner shall thereafter diligently proceed to cause such
lien, encumbrance or charge to be removed and discharged, and shall, in any event,
cause such lien, encumbrance or charge to be removed or discharged not later than
sixty (60) days prior to any foreclosure sale. If Owner or Affordable Housing Owner
shall fail either to remove and discharge any such lien, encumbrance or charge or to
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deposit security in accordance with the preceding sentence, if applicable, then, in
addition to any other right or remedy of City, City may, but shall not be obligated to,
discharge the same, without inquiring into the validity of such lien, encumbrance or
charge nor into the existence of any defense or offset thereto, either by paying the
amount claimed to be due, or by procuring the discharge of such lien, encumbrance or
charge by depositing in a court a bond or the amount or otherwise giving security for
such claim, in such manner as is or may be prescribed by law. Owner and Affordable
Housing Owner shall, immediately upon written demand thereof by City, pay to City an
amount equal to all costs and expenses incurred by City in connection with the exercise
by City of the foregoing right to discharge any such lien, encumbrance or charge. To
the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6. 3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other
costs of enforcing the obligations secured hereby including without limitation, recording
fees, receiver's fees and expenses, and all other expenses of whatever kind or nature,
incurred by the prevailing party in connection with the enforcement of this Agreement,
whether or not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner or Affordable Housing Owner, City shall be entitled to
enforce performance of any obligation of Owner or Affordable Housing Owner arising
under this Agreement and to exercise all rights and powers under this Agreement or any
law now or hereafter in force. Additionally, without limiting any of City's other rights or
remedies, upon any leasing of a particular Affordable Unit in violation of this Agreement,
then Affordable Housing Owner shall pay the City a single fee of $10 (which shall
increase by $2 every five (5) years) per day until the violation has been cured (it being
understood that if the Affordable Unit is unavailable due to material damage or
destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to
recover from Affordable Housing Owner and Owner, in addition to enforcement costs
and any other damages to which City may be entitled, all rent charged by Owner in
excess of the rental amounts permitted under this Agreement, with interest thereon from
the date paid to Affordable Housing Owner until the date paid by Affordable Housing
Owner to City at the lesser of eight percent (8%) per annum or the maximum rate
permitted by law. Affordable Housing Owner and Owner stipulate, acknowledge and
agree that the amounts described herein are reasonable estimates of the minimum
damages incurred by the City and public as a result of violation(s), and that actual
damage would be impractical or impossible to determine with accuracy. No remedy
herein conferred upon or reserved to City is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by this Agreement to the City
may be exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by the City, and the City may pursue inconsistent remedies. The
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City shall have the right to mandamus or other suit, action or proceeding at law or in
equity to require the Owner and the Affordable Housing Owner to perform its obligations
and covenants under this Agreement or to enjoin acts or things which may be unlawful
or in violation of the provisions hereof.
ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner or the Affordable Housing Owner:
ESSEX MOORPARK OWNER, L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by
overnight messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner or the City and the
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Affordable Housing Owner, or the City and any agents, employees or contractors of the
Owner or Affordable Housing Owner, and the Owner and the Affordable Housing Owner
shall each at all times be deemed an independent contractor and shall be wholly
responsible for the manner in which it or its agents, or both, perform the services
required of it by the terms of this Agreement for the operation of the Project. The Owner
and the Affordable Housing Owner have and hereby retain the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the
Project, the Owner and the Affordable Housing Owner shall be solely'responsible for all
matters relating to payment of its employees, including compliance with Social Security,
withholding and all other laws and regulations governing such matters. The Owner and
the Affordable Housing Owner each agrees to be solely responsible for its own acts and
those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner or the Affordable Housing Owner may
have employed or with whom the Owner or the Affordable Housing Owner may have
contracted relative to the purchase of materials, supplies or equipment, or the furnishing
or the performance of any work or services with respect to the operation of the Project
or the Property.
7.4 [INTENTIONALLY OMITTED]
7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall
be personally liable to the Owner, or any successor in interest, or the Affordable
Housing Owner, or any successor in interest, in the event of any default or breach by
the City or for any amount which may become from the City or successor or on any City
obligation under the terms of this Agreement. No member, official, employee, attorney,
partner or consultant of the Owner or the Affordable Housing Owner shall be personally
liable to City in the event of any default or breach by Owner or for any amount which
may become due to City or its successor, or on any obligations under the terms of this
Agreement or Development Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner and Affordable Housing Owner
under this Agreement to any person or entity, including, but not limited to, City and its
successors and assigns, is limited to their interests in the Project and the Property, and
such persons and entities shall look exclusively thereto, or to such other security as
may from time to time be given for the payment of obligations arising out of this
Agreement or any other agreement securing the obligations of Owner or Affordable
Housing Owner, under this Agreement, (ii) from and after the date of this Agreement, no
deficiency or other personal judgment, nor any order or decree of specific performance
other than pertaining to this Agreement), shall be rendered against Owner or Affordable
Housing Owner, or their assets (other than their interests in the Project, and this
Agreement), in any action or proceeding arising out of this Agreement.
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7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due toacts of God, fire, earthquake, flood, extreme weather
conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of
terrorism, vandalism, malicious mischief, inability to procure or general shortage of
labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation, ,
requisition, governmental restrictions including, without limitation, inability or delay in
obtaining government consents or permits, laws or orders of governmental, civil, military
or naval authorities, or any other cause, whether similar or dissimilar to the foregoing,
not within the party's control, other than lack of or inability to procure monies to fulfill its
commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner and the Affordable Housing Owner shall defend, indemnify and hold City
harmless from and against any and all claims, losses, damages, liabilities, costs and
expenses arising directly or indirectly from, or relating directly or indirectly to: (i) any
failure by Owner or Affordable Housing Owner to comply with the terms of this
condemnation Agreement; (ii) the construction, maintenance, alteration or operation of
the Project; (iii) any negligence or willful misconduct by Owner, Affordable Housing
Owner or any of their employees, agents, contractors, licensees, invitees or tenants on
the Project or the Property.
7. 8 Rights and Remedies Cumulative. Except as otherwise expressly stated
in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise or failure to exercise one or more of such rights or remedies by either party
shall not preclude the exercise by it, at the same time or different times, of any right or
remedy for the same default or any other default by the other party. No waiver of any
default or breach hereunder shall be implied from any omission to take action on
account of such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the waiver, and such wavier
shall be operative only for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or approval
by the City to or of any act by the Owner or Affordable Housing Owner requiring further
consent or approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act. The exercise of any right, power, or
remedy shall in no event constitute a cure or a waiver of any default under this
Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice
the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in
equity as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner or Affordable Housing Owner under this
Agreement. No delay or omission to exercise any right or power accruing upon any
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default shall impair any such right or power or shall be construed to be a waiver of such
right or power, but any such right or power may be exercised from time to time and as
often as City may deem expedient. In order to entitle the City to exercise any remedy
reserved to it in this Agreement, it shallnot be necessary to give any notice, other than
such notice as may be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7. 12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner or Affordable Housing Owner shall be deemed to apply to any successor or
assign or successor-in-interest of such party who has acquired any portion of or interest
in the Project. Without limiting the foregoing, City may assign this Agreement to the
Area Housing Authority of the County of Ventura or any other housing authority created
by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner and Affordable Housing
Owner each covenant and agree for itself, andits successors and assigns and every
successor in interest to any portion of or interest in the Project that it and its successors,
assigns and successors in interest shall comply with all of the terms, provisions,
easements, conditions, covenants, restrictions, liens, and servitudes set forth in this
Agreement. This Agreement is intended to bind the Project and Property "run with the
land".
7.14 Transfers. Owner shall provide the City with prompt notice of any
conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the
applicable deed. Owner shall provide the City with at least thirty (30) days' prior written
notice of any sale or transfer of the Project or the Property or any portion thereof. The
Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which the Essex Portfolio, L.P. or any affiliate
thereof, directly or indirectly, owns or controls the entity to which the transfer will be
made, provided that the City is given a copy of the Assignment and Assumption
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Agreement and organizational documents that prove the entity is such an affiliate of
Essex Portfolio, L.P.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with
respect to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties
and has been the subject of arm's length and careful negotiation over a considerable
period of time, that each party has reviewed this Agreement with legal counsel, and that
each party has the requisite experience and sophistication to understand, interpret and
agree to the particular language of the provisions of this Agreement. Accordingly, in the
event of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or ,
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of
California, without regard to conflict of law provisions, except to the extent federal law
applies. Venue for any action brought under this Agreement will be in the Superior Court
for the County of Ventura, California or in the United States District Court for the. Central
District of California. Owner and Affordable Housing Owner each hereby accepts for
itself and in respect to its property, generally and unconditionally, the non-exclusive
jurisdiction of the foregoing courts. Owner and Affordable Housing Owner each
irrevocably consents to the service of processin any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to Owner and
Affordable Housing Owner at its address fornotices pursuant to this Agreement.
Nothing contained herein shall affect the right of the City to serve process in any other
manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply forthe
purposes of this Section:
a) "Hazardous Materials" shall mean:
1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of
the California Health and Safety Code at such time;
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2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in . Section 25117, 25117.5 or 25501(j) of the
California Health and Safety Code at such time;
3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under
any other present or future environmental or other similar laws relating to
the Project or the Property.
b) "Hazardous Materials Laws" means all federal, state, and local
laws, ordinances, regulations, orders and directives pertaining to Hazardous
Materials, in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner and Affordable Housing Owner hereby agree that:
a) Neither shall knowingly permit the Project, the Property or
any portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation, •
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which
may contain chemicals listed by the State of California pursuant to Health and Safety
Code Section 25249.8 et seq., which substances are commonly used by a significant
portion of the population living within the region of the Project, including (without
limitation) alcoholic beverages, aspirin, tobacco products, and saccharine.
b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
c) Upon receiving actual knowledge of the same, the Owner or
Affordable Housing Owner shall immediately advise the City in writing of: (1) any and
all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
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completed or threatened against the Owner or the Project or the Property pursuant to
any applicable Hazardous Materials Laws; (2) any and all claims made or threatened by
any third party against the Owner or Affordable Housing Owner or the Project or the
Property relating-to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1)
and this clause (2) are hereinafter referred to as "Hazardous Materials Claims"); (3) the
presence of any Hazardous Materials in, on or under the Project or the Property; or (4)
the Owner's or the Affordable Housing Owner's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
borderzone property" under the provisions of California Health and Safety Code,
Section 25220 et seq., or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Project or the Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner and Affordable Housing Owner hereby agree to
indemnify, protect, hold harmless and defend (by counsel reasonably approved by the
City) the City, and its City Council members, officers, employees, contractors, agents
and attorneys from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith, including, but not limited to, reasonable
attorneys' fees and expenses(collectively, a "Loss"), arising directly or indirectly, in
whole or.in part, out of (1) the failure of the Owner or the Affordable Housing Owner, as
applicable, or any other person or entity occupying or present on their respective
interest in the Project or Property, to comply with any Hazardous Materials Law relating.
in any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Materials into, on,
under or from the Project or the Property; (2) the presence in, on or under its interest in
the Project or the Property of any Hazardous Materials or any releases or discharges of
any Hazardous Materials into, on, under or from its interest in the Project or the
Property; or (3) any activity carried on or undertaken on its interest in the Project or the
Property during its ownership thereof, whether by the Owner or the Affordable Housing
Owner or any employees, agents, contractors or subcontractors, or any third persons at
any time occupying or present on the Project or the Property, in connection with the
handling, treatment, 'removal, storage, decontamination, cleanup, transport or disposal
of any Hazardous Materials at any time located or present on or under the Project or the
Property. The foregoing indemnity shall further apply to any residual contamination on
or under .the Project or the .Property, or affecting any natural resources, and to any
contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such
Hazardous Materials on, under, or from the Project or the Property, and irrespective of
whether any of such activities were or will be undertaken in accordance with Hazardous
Materials Laws. However, the foregoing indemnity shall not extend to the portion of any
Loss arising from the gross negligence, fraud or willful misconduct of the City or anyone
for whose actions the City is legally liable. This Section shall survive termination of this
Agreement.
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7.19.4 No Limitation. Owner and Affordable Housing Owner hereby
acknowledge and agree that their duties, obligations and liabilities under this Agreement
are in no way limited or otherwise affected by any information the City may have
concerning the Project or the Property and/or the presence within the Project or the
Property of any Hazardous Materials, whether the City obtained such information from
Owner or Affordable Housing Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner and Affordable Housing Owner shall
maintain and keep in force, at their sole cost and expense, the following insurance for
their respective interests in the Project, provided, however, that a Contractor's liability
policy may be used during construction provided it complies with all terms and
conditions of this Section:
a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for
bodily injury and property damage, including coverages for contractual liability, personal
injury, broad form property damage, products and completed operations. Beginning on
the fifth anniversary date of the recordation of this Agreement, and thereafter every five
5) years, the policy limits shall be increased by ten percent (10%) of the then-current
limit.
b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind
and sized apartment projects within the City.
d) A policy or policies of insurance against loss or damage to
the Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief,
and such other perils ordinarily included in extended• coverage casualty insurance
policies. In addition, if Owner or Affordable Housing Owner carries coverage voluntarily
for additional causes (such as earthquake, riot, civil commotion or other), such coverage
shall be treated in all respects as the policy or policies required to be kept under this
paragraph (d) for so long as it continues to voluntarily carry such coverage. All
insurance hereunder, except earthquake insurance, shall be maintained in an amount
not less than one hundred percent (100%) of the Full Insurable Value of the Project as
defined below (such value to include amounts spent for construction of the Project,
architectural and engineering fees, and inspection and supervision). "Full Insurable
Value of the Project" shall mean the actual replacement cost excluding the cost of
excavation, foundation and footings below the ground level of the Project. To ascertain
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the amount of coverage required, Owner and Affordable Housing Owner shall cause the
Full Insurable Value to be determined from time to time, but in no event less often than
once each five (5) years, by appraisal by the insurer or by any appraiser mutually
acceptable to. City, Owner and Affordable Housing Owner; except that no such
appraisals shall be required if the policy is written on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section
shall be provided under an occurrence form, and Owner and Affordable Housing Owner
shall maintain such coverage continuously so long as this Agreement is in force,
Should any of the required insurance be provided under a form of coverage that
includes an annual aggregate limit or provides that claims investigation or legal defense
costs be included in such annual aggregate limit, such annual aggregate limit shall be
one and one-half times the occurrence limits specified above. All policies shall be with
an insurance carrier licensed and admitted to do business in California and rated in
Best's Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a "Best's Rating" of "A" and a "Financial Size
Category" of at least"VII" or if such ratings are not then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional
insured on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee.
Comprehensive general liability policies shall also be endorsed to name as additional
insureds the City, and its City Council members, officers, agents and employees. All
policies shall be endorsed to provide thirty (30) days prior written notice of cancellation,
reduction in coverage, or intent not to renew to the address established for notices to
the City pursuant to Section 7.1 of this Agreement.
7.20.4 Certificates of. Insurance. Upon the City's request at any time
during the Term of this Agreement, Owner and Affordable Housing Owner shall provide
certificates of insurance, in form and with insurers reasonably acceptable to the City,'
evidencing compliance with the requirements of this Section, and shall provide complete
copies of such insurance policies, including a separate endorsement approved by the.
City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an
additional insured.
7.21 Burden and Benefit. City and Owner and Affordable Housing Owner
hereby declare their understanding and intent of the burden of the covenants set forth
herein touching and concerning the Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be
made only upon the written mutual consent of the Parties. However, no changes shall
be made to this Agreement which would adversely affect any bonds issued under this
Project without the written consent of all appropriate parties with respect to any bond
issuance.
246
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City,
Owner, Affordable Housing Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner and Affordable
Housing Owner agree to cast affirmative ballots for the increase of any assessment for
existing assessment districts for the maintenance of parking and median landscaping,
street lighting and parks conferring special benefits, and for the formation of any new
assessment district for such purposes, in order to supplement then-existing
assessments upon properties within the Project. Owner and Affordable Housing Owner
hereby waive any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner and Affordable Housing
Owner shall pay the funds that the assessment district requires to the assessment
district within five (5) business days after written demand from the assessment district
from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1. 1
above). The following provisions of the Development Agreement are hereby
incorporated herein to clarify that they survive the expiration of the Development
Agreement (but, except for Sections 8.1, 8.4 and 8.7, such provisions will not survive
any earlier termination of the Development Agreement due to a default by the
Developer" thereunder) and continue until the expiration (or earlier termination) of this
Agreement, it being understood that all of the rights and benefits of Owner and
Affordable Housing Owner under the following (except for obligations thereunder arising
prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early
termination of the Development Agreement due to a default by Owner or Affordable
Housing Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. After the initial
conveyance by Owner to Affordable Housing Owner of Affordable Units, Owner and the
Affordable Housing Owner and their successors in interest shall not convey their
respective portions of the Property separately, but shall only convey them concurrently
and to the same purchaser, only to a purchaser reasonably approved in writing by City
which will consider the reputation and experience of the purchaser in owning and
operating affordable rental units). As a condition to the initial conveyance by Owner to
Affordable Housing Owner of Affordable Units, Owner and Affordable Housing Owner
shall execute, acknowledge and record (i) a separate agreement (i.e., a covenant and
agreement to hold property as one parcel) imposing the foregoing restriction on the
Property, which shall be subject to the written approval of City, and (ii) "conditions,
247
covenants and restrictions" for the Project ("CC&R's"), which shall also be subject to the
written approval of City. Such separate agreement and CC&R's shall be senior to any
and all deeds of trust and other liens (except property taxes and assessments not yet
due).
8.2 Development of the.Property. The following provisions shall govern the
subdivision, development and use of the Property.
8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8. 2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are.set forth in the Project Approvals
and the Development Agreement.
8. 2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements
that are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner and Affordable Housing Owner
agree that densities vested and incentives and concessions received in the Project
Approvals include all densities available as density bonuses and all incentives and
concessions to which Developer is entitled under the Moorpark Municipal Code,
Government Code Sections 65915 through 65917.5 or both; neither Owner nor
Affordable Housing Owner shall be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this
Agreement is in consideration for the density bonus obtained through the Project
Approvals that is greater than would otherwise be available. Residential Planned
Development Permit No. 2012-02, including the special conditions that incorporate and
include all of the requirements set forth in this Agreement are part of the Project
conditions of approval and not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner and
Affordable Housing Owner shall pay the City a single Five.Thousand Dollar ($5,000)
Assessment District Formation Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment District containing two
zones (one zone to be fully funded and the other to be a back up zone), as determined
by the City at the City's discretion, shall be formed that includes the Property. The first
District out of the two Districts or the first zone of the one District, whichever is
248
applicable, shall be for the purposes of funding future costs for the maintenance
landscaping and irrigation of the landscaped area above the retaining wall along the
southern perimeter of the Property and the maintenance of the storm water quality basin
and drainage improvements, including basin landscaping and irrigation. The second
District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emergency access drive. It shall be the intent of the
City to approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for
the that fiscal year. The City shall administer the annual renewal of the Assessment
District or Districts, and any costs related to such administration shall be charged to the
fund 'established for such Assessment District revenues and expenses. Owner and
Affordable Housing Owner agree to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and for annual
increases in the assessments thereunder, for the purposes specified in this subsection.
Owner and Affordable Housing Owner hereby waive any right they may have to contest
or protest any such assessments or assessment increases. In the event that any such
Assessment District has insufficient funds for its purposes, then Owner or Affordable
Housing Owner shall pay the funds required to the Assessment District within five (5)
business days after written demand from the Assessment District from time to time.
Owner and Affordable Housing Owner also agree to add this language to any
Regulatory Agreement as part of the sale of any bonds issued by the City for the
Project.
8.5 Fee Protest Waiver. Owner and Affordable Housing Owner agree that any
fees and payments pursuant to the Development Agreement, this Agreement and for
RPD 2012-02 shall be made without reservation, and Developer expressly waives the
right to payment of any such fees under protest pursuant to California Government
Code Section 66020 and statutes amendatory or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner and Affordable Housing
Owner agree to provide a total of at least 2.00 parking spaces per unit on site. Two
parking spaces shall be designated and reserved for each of the 2-bedroom and 3-
bedroom units, and one space shall be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest parking. At least
one of the parking spaces designated and reserved for each of the units shall be in a
garage or covered carport. There shall be no extra charges for required parking for any
units (whether or not they are Affordable Units). Owner and Affordable Housing Owner
shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge
the City's ability to modify the development standards and to change the General Plan
designation and zoning of the Property upon the termination or expiration of the
Development 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
249
development standards and density of permitted development to that in existence prior
to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone
Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner and Affordable Housing Owner will defend, indemnify
and hold City harmless from and against any and all claims, liabilities, losses, damages,
costs and expenses arising from any activity by Owner or Affordable Housing Owner or
the contractors of either of them.
8.9 Storm Water/Flood Detention Basin. City agrees that Owner and
Affordable Housing Owner may use the storm water/flood detention basin located on
the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for
the Project, and City shall execute and deliver a revocable license agreement to Owner
and Affordable Housing Owner to that effect; however, City may elect by written notice
to Owner and Affordable Housing Owner to relocate said detention basin and any
service road and secondary access road located on the City Property at any time, and
Owner and Affordable Housing Owner shall reimburse or pay City for the costs of such
relocation within ten (10) business days after written demand from City from time to time
describing such costs. Owner and Affordable Housing Owner shall promptly provide a
bond acceptable to City in the amount of such costs, as projected in good faith by City,
to ensure payment of the costs, and every two (2) years the amount of the bond shall be
increased (by amendment or by a replacement bond) by the percentage increase over
the applicable two year period in the Caltrans Highway Bid Price Index for Selected
California Construction Items, as determined in good faith by the City Manager.
WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
By: -
Print Name:
Title:
250
OWNER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management
Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
251
A notary public or other officer
completing this certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California
County of Ventura
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf .of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
252
A notary public or other officer
completing this certificateverifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California
County of Ventura
On _ before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
253
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho"Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st
Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said
Parcel 1A.
254
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE;
LOCATIONS OF AFFORDABLE UNITS
Very Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br ,8 2 persons 156
2-br/2 bath 7 3 persons 175
3-br 1 4 persons 199
Total 16
Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 11 2 persons 156
2-br/2 bath 12 3 persons 175
3-br 1 4 persons 199
Total 24
Moderate Income but must instead be Low Income when tax credit and/or tax
exempt bond laws apply to the Project)
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 0 2 persons 156
2-br/2 bath 5 3 persons 175
3=br 5 4 persons 199
Total 10
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
Illustration: For example, the maximum rent for a Very Low Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
255
Illustration: For example, the maximum rent for a Low Income Household renting
a 2-bedroom unit would be calculated as follows: 30% x 60% x the Ventura County
median income for a household of three divided by 12, less the utility allowance.
Illustration: For example, the maximum rent for a Moderate Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 110% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
Utility Allowances will be adjusted annually using the most current "Allowances
for Tenant Furnished Utilities and Other Services" (form HUD-52667) based on
Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas — Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric uses)
Locations of Affordable Units (Including Handicapped-Compliant Units)
The Affordable Units (including handicapped-compliant units) shall be located as
shown on the site plan attached hereto.
256
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259
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification Recertification Unit Number
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and
personally each of the following questions for all persons who are to occupy the unit
being applied for in the above apartment project. Listed below are the names of all
persons who intend to reside in the unit:
1. 2. 3. 4. 5.
Name of Members Relationship
Of the to Head of Social Security Place of
Household Household Age Number Employment
Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of
all persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
fora unit is $
If this form is being completed in accordance with recertification of a Lower Income Tenant's or Very Low Income Tenant's
occupancy of a Lower Income Unit or a Very Low Income Unit, respectively,this form must be completed based upon the
current income of the occupants.
260
Included in the total anticipated income listed above are:
a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal
services;
b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in income, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by
the family ;
c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only
as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net
family assets in excess of $5,000, annual income shall include the greater of the actual
income derived from all net family assets or a percentage of the value of such assets
based on the current passbook savings rate.
d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that
are received in a lump sum amount or in prospective monthly amounts;
e) payments in lieu of earnings, such as unemployment and disability
compensation, workers' compensation and severance pay;
f) welfare assistance. If the welfare assistance payment includes an amount
specificallydesignated for shelter and utilities that is subject to adjustment by the
welfare assistance agency in accordance with the actual cost of shelter and utilities, the
amount of welfare assistance income to be included as income shall consist of:
1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
2) the maximum amount that the welfare assistance agency could in fact
allow the family for shelter and utilities. If the family's welfare assistance is ratably
reduced form the standard of need by applying a percentage, the amount calculated
under this paragraph shall be the amount resulting from one application of the
percentage;
261
g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from
persons not residing in the dwelling;
h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the
special pay to a family member serving in the Armed Forces who is exposed to hostile
fire; and
Excluded from such anticipated income are:
a) income from employment of children (including foster children) under the age of
18 years;
b) payments received for the care of foster children or foster adults (usually persons
with disabilities, unrelated to the tenant family, who are unable to live alone);
c) lump sum additions to family assets, such as inheritances, insurance payments
including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
e) income of a live-in aide, as defined by 24 CFR §5.403;
f) the full amount of student financial assistance paid directly to the student or to
the educational institution;
g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits
because they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
3) amounts received by a participant in other publicly assisted programs
which are specifically for or in reimbursement of out-of-pocket expenses incurred
special equipment, clothing, transportation, child care, etc.) and which are made solely
to allow participation in a specific program;
4) amounts received under a resident service stipend is a modest amount
not to exceed $200 per month) received by a resident for performing a service for the
262
Public Housing Issuer or owner, on a part-time basis, that enhances the quality of life in
the development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including
training programs not affiliated with a local government) and training of a family member
as resident management staff. Amounts excluded by this provision must be received
under employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
i) temporary , nonrecurring or sporadic income (including gifts);
j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
k) earnings in excess of $480 for each full-term student 18 years old or older
excluding the head of household and spouse);
I) adoption assistance payments in excess of$480 per adopted child; and
m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and
equipment needed to keep the developmentally disabled family member at home; or
p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth
in 24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or
b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
263
Yes No
c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
Yes No
d) If the answer to (c) above is yes, state:
1) the combined total value of all such assets: $
2) the amount of income expected to be derived from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ and
3) the amount of such income, if any, that was included in item 6 above:
8. Are all of the individuals who propose to reside in the unit full-time students*?
Yes No
A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the
owner of the rental housing project in which the unit is located (hereinafter the "Owner"),
has any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the
Owner to determine maximum income for eligibility to occupy the unit; and I/we declare
that all information set forth herein is true, correct and complete and based upon
information I/we deem reliable and that the statement of total anticipated income
contained in paragraph 6 is reasonable and based upon such investigation as the
undersigned deemed necessary.
264
11. I/We will assist the Affordable Housing Owner in obtaining any information or
documents required to verify the statements made herein, including either an income
verification from my/our present employer(s) or copies of federal tax returns for the
immediately preceding calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Affordable Housing Owner to lease the unit and will entitle
the Owner to prevent or terminate my/our occupancy of the unit by institution of an
action for ejection or other appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this day of 20 year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
265
FOR COMPLETION BY OWNER/AFFORDABLE HOUSING OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($
2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount •
in 7( d)(1) would be if invested in passbook savings ($ subtract from
that figure the amount entered in 7(d)( 3) and enter the remaining balance ($
3) Enter at right the greater of the amount calculated under (1) or (2)
above:$
c.TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Moderate-Income Tenant(s).
Qualifies the applicant(s) as a Lower-Income Tenant(s).
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
3.Number of apartment unit assigned: Bedroom size:
Rent:$
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other(
6.Is occupant a City of Moorpark resident on the waiting list who was given
priority?Yes: No:
Manager Date
266
INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Gross Net 1099 Public Social Pension Unemploy Military Alimony Family
Applicant Wages Income Income Assistance Security ment Pay and/or Supp.
Salaries* from 1040 disability or Child (regular gift
YTD as of:self workers Support from
employed) compensat person not
ion pay living in
unit)
1
2
3
4
A)TOTAL INCOME
Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or
insurance payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written
verification is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property* Savings
Stocks Bonds
Other**
B)TOTAL ASSET INCOME
Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount
of any loans secured by the property.
Does not include the personal property i.e.,furniture or automobiles.
TOTAL HOUSEHOLD INCOME (A+ B)
267
INCOME VERIFICATION
FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages Gross) Other Income
Avg. Total Hours
Overtime Worked Weekly
Bonuses Total Current Income
Commissions Year-to-Date Income
Current Base Pay
Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? 0 Yes 0 No
If so, please indicate the amount of anticipated increase $ per
start date:
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
APPLICANT
268
I hereby grant you permission to disclose my income to.
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed
under the Multifamily Revenue Bond Program.
Date
Print Name (Resident) Signature (Resident)
Please send to:
Management Co.
or Owner)
269
INCOME VERIFICATION
for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
270
INCOME VERIFICATION
for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very
low income: Every income statement of a prospective tenant must be stringently
verified. In connection with my application for a rental unit, I hereby authorize the
Department of Social Services to release to
the specific information requested
below:
Date:
Signature:
Social Security No.:
Name (Print):
Address(Print)
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deductions: $
Are benefits expected to change?[ ] Yes [ ] No
If yes, please state date and amount:
Date: of change
Amount $
271
If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption: •
Amount:
Date:
Signature:
Title:
Please send form to:
272
INCOME VERIFICATION
for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the
Multifamily Housing Program for persons of very low income. Every income statement
of a prospective tenant must be stringently verified. In connection with my application
for a rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date:
Signature:
Caseload Number:
Name (Print):
Case Number:
Case Worker:
1. Number of persons included in budget:
2. Total monthly budget$
a) Amount of grant $
b) Date aid last began:
c)Other income and source:
d) Is other income included in total budget? Yes 0 No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):
4. If recipient is not receiving full grant, please indicate reason:
Overpayment due to client's failure to report other income
Computation error
Other:
273
Date when full grant will resume:
Date:
Case Worker's Signature:
Telephone:
District Office:
Your very early response will be appreciated.
Please return form to:
274
DECLARATION OF NO INCOME
As managing agents for
Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence
and used only for the purpose of establishing eligibility.
Name of Management Company
By:
Name and Title
CERTIFICATION
I, do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from
any source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
275
Support Verification
Source's Mailing Address:
Phone #:
Fax#:
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information
requested below regarding the above referenced individuals. This information will be
used only for determination of eligibility and/or rent computation. You will notice a
release of information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:
Social Security#:
276
Please complete the following. If the monies are based on a percentage of the payor's
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
Child Support weekly ( ) monthly (
yearly
Family Support weekly( ) monthly (
yearly
Alimony weekly ( ) monthly(
yearly
Other weekly ( ) monthly (
yearly
Please list
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:
Signature of Source:
SSN#:
Date Completed Form:
277
EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING
The undersigned,as the authorized
representative of the "Affordable Housing Owner"), has
read and is thoroughly familiar with the provisions of the Affordable Housing Agreement
by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the City of
Moorpark (the "City"), dated as of 2017.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date a Very Low
Income Tenant or Low Income Tenant vacated such Unit, as indicated:
Occupied by Very Low Income Tenants
Number of Units:
Occupied by Low Income Tenants
Number of Units:
Occupied by Moderate Income Tenants
Number of Units:
Held vacant for occupancy continuously since last occupied by Very Low Income
Tenants and Low Income Tenants:
Vacant Units
Number:
Occupied Units
Number:
Very Low Income Tenants and Low Income Tenants who commenced occupancy of
Units during the preceding [month/quarter]:
Very Low Income:
Units Nos.:
278
Low Income:
Units Nos.
Moderate Income:
Number of Units:
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of
each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the
size and number of bedrooms of each Unit. It also indicates which Units are occupied
by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants
and which Units became Low Income Units and Very Low Income Units and Moderate
Income Tenants during the preceding [month/quarter]. The information contained
thereon is true and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
and Affordable Housing Owner during such [month/quarter] and of Owner's and the
Affordable Housing Owner's performance under the Affordable Housing Agreement
among Owner, Affordable Housing Owner and the City, has been made under the
supervision of the undersigned; and (2) to the best of theknowledge of the undersigned,
based on the review described in clause (1) hereof, the neither the Owner nor the
Affordable Housing Owner is in default under any of the terms and provisions of the
above documents [or describe the nature of any default in detail and set forth the
measures being taken to remedy such default:
279
EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
INITIAL LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
Attached.)
280
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281
EXHIBIT "G"
FORM OF OVERHEAD POWER EASEMENT
Form to be proposed by Southern California Edison for a 66kV power line, but will be
subject to approval by the City Manager, and it shall be executed and recorded by
Developer prior to issuance of a grading permit for the Property and prior to conveying
the City Site to the City. The easement must be a reasonable easement over the
northerly 30 feet (or less) of the City Site, permitting reasonable use of the easement
area by City for parking, ingress/egress and landscaping.
Exhibit G
Page 1 of 1
12853-0018\2044326v1.doc
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283
EXHIBIT "H"
STORM WATER/FLOOD DETENTION BASIN
Diagram attached.)
12853-0018\2044326v1.doc
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285
EXHIBIT "I"
FORM OF WELL SITE GRANT DEED
AND CERTIFICATE OF ACCEPTANCE)
Attached.)
12853-0018\2044326v1.doc
286
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN: 511-0-020-071
SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
Well Site)
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant Deed is exempt from Recording Fees
pursuant to California Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged
the ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Grantor")
hereby grants to the CITY OF MOORPARK ("Grantee"), the land and located in the
County of Ventura,State of California, more particularly described on Exhibit A attached
hereto and incorporated herein by reference and all improvements thereon (collectively,
the"Property").
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date
set forth below.
Dated: 2017
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:
Print Name:
Title:
287
A notary public or other officer completing this certificate verifies only the
identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or validity of the document.
STATE OF CALIFORNIA
COUNTY OF
On 20 before me,
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature:
affix seal in above space)
288
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
A PORTION OF LOT T OF THE MAP OF A PART OF TRACT L OF RANCHO SIMI, IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT 325.00 FEET WEST OF THE SOUTHEAST CORNER OF
SAID LOT T, THENCE
1ST: WEST 10.00 FEET TO POINT; THENCE,
2ND: NORTH 20.00 FEET T A POINT; THENCE,
3RD: EAST 20.00 FEET TO POINT; THENCE,
4TH: SOUTH 20.00 FEET TO A POINT; THENCE,
5TH: WEST 10.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM 50% OF ALL OIL AND MINERAL RIGHTS IN AND UNDER
SAID LAND, AS RESERVED BY WALLY B. HOFFELT, IN A DEED RECORDED
MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ANY AND ALL
RIGHT TO ENTER IN OR UPON THE SURFACE, OR WITHIN 500 FEET OF THE
PRESENT SURFACE, MEASURED VERTICALLY, FROM SUCH SURFACE WAS
QUITCLAIMED BY WALLY B. HOFFELT IN A DEED RECORDED FEBRUARY 11,
1958 IN BOOK 1589, PAGE 153 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM AN UNDIVIDED 25% OF AN UNDIVIDED ONE-
HALF INTEREST IN AND TO THE TOTAL OIL AND MINERAL RIGHTS IN AND
UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR
SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCER AND DORA E. SPENCER, IN A DEED RECORDED FEBRUARY 4, 1958 IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
289
CERTIFICATE OF ACCEPTANCE
California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant
Deed dated 2017, from Essex Moorpark Owner, L.P. to the City of
Moorpark, which is a political corporation, is hereby accepted by the undersigned officer
on behalf of the City of Moorpark pursuant to the authority conferred by action of the
City of Moorpark on 2017, and the grantee consents to recordation thereof
by its duly authorized officer.
Dated: 2017
Steven Kueny,
City Manager
ACKNOWLEDGMENT
290
A notary public or other officer
completing this certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accuracy, or validity of
that document.
State of California
County of
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
291
SCHEDULE 1
SCHEDULE OF PERFORMANCE
Design Phase: Design has been completed
Bond / Tax Certificate Application: May 19, 2017 (Tax credit application would follow
shortly thereafter.)
Subdivision Mapping: Estimated to be September, 2017.
Conveyance to Affordable Housing Owner entity (after delivery of organizational
documents for Affordable Housing Owner to City): October, 2017
Plan Check / Building Permits: May 31, 2017
Evidence to City of all debt/equity funds for all Project costs (with comprehensive
Project budget): August, 2017
Close Bond Financing: October, 2017
Construction: 28 months from start of grading, but no later than December 31, 2020.
Lease-Up: approximately 11 months
12853-001812044326v1.doc
292
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
2022000082017
Recorded in Official Records
Venlura Counly Clerk-Recorder
Mark A. Lunn
08/04/2022
08:51 AM
VEN
CORTEZE
Titles: 1 Pages: 96
Fees: $0.00
EXEMPT FROM Rt:t;UKucr<'S FEES
Pursuant to Government Code 6103
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK
OWNER, L.P.
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES
HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868. 5
ATTACHMENT 3
293
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF MOORPARK AND
ESSEX MOORPARK OWNER, LP.
This First Amendment to the Development Agreement ("First Amendment") is
made and entered into on August 2, 2022, and is an amendment to that certain
Development Agreement ("Agreement") that was made and entered into on April 17, 2017,
and recorded on April 17, 2017 by Instrument No. 20170417-00050720-0 by and between
the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as "City"), and
ESSEX MOORPARK OWNER, L.P., a California limited liability company ("Developer").
City and Developer are referred to hereinafter individually as "Party" and collectively as
Parties." In consideration of the mutual covenants and agreements contained in this First
Amendment to the Agreement, City and Developer agree as follows:
1. Recitals. This First Amendment is made with respect to the following facts
and for the following purposes, each of which is acknowledged as true and
correct by the Parties:
a. Pursuant to Government Code Section 65864 et seq. and
Moorpark Municipal Code chapter 15.40, City is authorized to enter
into a binding contractual agreement with any person having a legal
or equitable interest in real property within its boundaries for the
development of such property in order to establish certainty in the
development process.
b. Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to
hereinafter as the "Property").
c. Prior to, and in connection with approval of the Agreement, the City
Council reviewed the project to be developed pursuant to the
Development Agreement as required by the California
Environmental Quality Act ("CEQA".) The City Council found that
the Mitigated Negative Declaration ("MND") and Mitigation
Monitoring and Reporting Program ("the MMRP") adopted by
Resolution No 2007-2611 to be applicable to the Agreement and that
no changes or new information within the scope of State CEQA
Guidelines Section 15162 required the preparation of a new or
subsequent environmental document in connection with the
approval of the Development Agreement.
d. Prior to approval of the Agreement, the City had approved General
Plan Amendment No. 2004-05 ("GPA 2004-05"), Zone Change No.
2004-04 ("ZC 2004-04"), and Residential Planned Development
Permit No. 2012-02 ("RPO 2012-02"), including all subsequently
approved modifications and permit adjustments to RPO 2012-02 and
all amendments thereto (collectively "the Project Approvals";
2 294
individually "a Project Approval") to provide for the development of the
Property with a 200-unit residential apartment complex and the
construction of certain off-site improvements in connection therewith
the Project").
e. Thereafter, the Parties entered into the Agreement with respect to the
Property on April 7, 2017, and the Agreement was recorded on April
17, 2017 by Instrument No. 20170417-00050720-0.
f. In order for Developer to achieve a financial plan to construct the
Project, as well as to provide the housing opportunities for residents
and to assist in advancing the City's state-certified Housing Element,
the Parties desire to amend the Agreement to change the Project from
one that provided that fifty (50) units to be affordable to qualifying
income families to one that provides that 200 units, one hundred
percent (100%) of which to be affordable to qualifying income
families and thereby meet the diverse housing needs of the
community, except for two onsite property manager units which shall
be unrestricted.
g. In consideration of the increase in the number of affordable housing
units to be included in the Project, the City has agreed to provide
reductions in certain development impact fees and to provide for a
deferral of some development impact fees in the form of a long-term
loan to the Developer, which changes are reflected in this First
Amendment.
h. On July 27, 2021, the Planning Commission of the City commenced
a duly noticed public hearing on the environmental determination,
and this First Amendment, and at the conclusion of the hearing
recommended approval of the environmental determination and this
First Amendment.
i. On September 1, 2021, the City Council commenced a duly noticed
public hearing on the environmental determination and this First
Amendment, and at the conclusion of the hearing, made an
environmental determination introduced Ordinance No. 490 to
approve this First Amendment. On September 15, 2021, the City
Council adopted Ordinance No. 490 approving this First
Amendment.
2. Conditions to the Effectiveness of this First Amendment. In addition to the
condition in Section 16 of this First Amendment, the effectiveness of this
First Amendment is conditioned upon the occurrence of the following on
or before October 29, 2022: (i) the sale of the Property to the Affordable
Housing Owner (as defined below); (ii) the assignment of the existing
Affordable Housing Agreement to the Affordable Housing Owner and the
3
295
execution and recording of the Amended and Restated Affordable Housing
Agreement attached hereto as Exhibit "D" (hereinafter referred to as the
Restated Affordable Housing Agreement"); (iii) the execution and delivery
by Affordable Housing Owner of a promissory note and deed of trust in the
forms attached hereto as Exhibit "E" (hereinafter referred to as the "City
Loan Note" and the "City Loan Deed of Trust"), and the recording of such
City Loan Deed of Trust against the Property (excluding the City Site); and
iv) the conveyance by Affordfable Housing Owner to City of the City Site.
3. Amendment of Section 1.5. Section 1.5 of the Agreement is amended to
read as follows:
All of the units at the Project (except onsite manager's units) shall be
Affordable Units rented to individuals and families whose incomes do not
exceed those specified by the Restated Affordable Housing Agreement-at
rents no greater than those set forth in the Restated Affordable Housing
Agreement (the "Affordable Units") or the Regulatory Agreements (as
defined below) encumberinig the Property (it being understood that the
rents under the Restated Affordable Housing Agreement shall apply to the
units restricted thereunder if they are lower than other Regulatory
Agreements). The Project shall be restricted and encumbered by both the
Restated Affordable Housing Agreement and such Regulatory
Agreements. The City and Developer acknowledge and agree that the
Developer shall apply for, qualify, develop and finance the Project in a
manner that qualifies for tax exempt bond financing and federal low-
income housing tax credits.
4. Amendment of Section 3.2. Section 3.2 of the Agreement is amended to
read as follows:
Restrictions on Transfer. The restrictions contained in this Agreement
placed upon any Transfer to any Transferee are imposed because the
qualifications and identity of Developer are of particular concern to the City,
and it is because of those qualifications and identity that the City has
entered into this Agreement with Developer. Except as permitted herein,
Developer shall not Transfer all or any part of its interest in or rights under
this Agreement, and/ or any part of its interest in or rights to the Site and/or
any of the Improvements constructed thereon, without the prior written
approval of City. City's approval shall be granted or withheld in City' s
discretion, but shall not be unreasonably withheld, delayed or conditioned.
Following a Transfer pursuant to this Agreement with City consent and the
written assumption by the Transferee of the obligations Transferred, the
Transferor shall be released from any further liability thereafter arising with
respect to the obligations Transferred. At any time Developer desires to
effect a Transfer requiring the consent of City under this Agreement,
Developer shall, except as expressly provided below in this Section,
request consent from the City in writing and shall submit to City any
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proposed agreement evidencing the proposed Transfer (collectively, the
Transfer Documents"). City agrees to notify Developer in writing of its
decision with respect to Developer's request for consent to such Transfer,
as promptly as possible, and, in any event, not later than thirty (30) days
after City receives the Developer's written request for consent to the
transfer and the Transfer Documents; provided, that, if City requires
additional time, it may unilaterally extend the approval or disapproval of
such Transfer for up to an additional thirty (30) days by providing written
notice to Developer of such required extension within the initial thirty (30)
day period. Notwithstanding the foregoing, Developer has entered into an
Agreement For Purchase and Sale and Escrow Instructions ("Danco
Purchase Agreement") with Danco Homes LLC ("Danco"), a developer
experienced in the development and operation of low-income multifamily
housing communities. Pursuant to the Danco Purchase Agreement,
Developer shall sell the Property to a limited partnership (the "Affordable
Housing Owner") that has Danco or its affiliate as the administrative
general partner to acquire, own, and operate the Project in accordance
with this Agreement and the Restated Affordable Housing Agreement. The
Affordable Housing Owner intends to finance the costs of development of
the Project in part with tax credit equity and tax-exempt bond financing and
the entire Project will be restricted to low-income use pursuant to
regulatory agreements with the California Tax Credit Allocation Committee
and the issuer of the tax-exempt bonds (the "Regulatory Agreements").
The Developer intends to assign all of its rights, title, interest and
obligations under this Agreement and the Restated Affordable Housing
Agreement and their accompanying exhibits to the Affordable Housing
Owner and the Affordable Housing Owner shall execute and record the
Restated Affordable Housing Agreement concurrently with the acquisition
of the Property from Developer. Upon such assignment, all references to
the Developer hereunder shall be a reference to the Affordable Housing
Owner. The sale of the Property and the related assignments of this
Agreement and the Restated Affordable Housing Agreement to the
Affordable Housing Owner are hereby approved by the City, subject only
to City's approval of the Transfer Documents and receipt of a copy of the
limited partnership agreement and LP-1 of the Affordable Housing Owner.
5. Amendment of Section 3.3. Section 3.3 of the Agreement is amended to
read as follows:
No Other, Separate Conveyance of a Portion of the Property or Project.
Except for the conveyance to the Affordable Housing Owner, Developer
shall not convey any portion of the Property or Project separately from any
other portion but shall only convey any interests concurrently and to the
same purchaser, and only to a purchaser reasonable approved in writing
by City (which will consider the reputation and experience of the purchase
in owning and operating affordable rental units), and as provided in Section
3.2 and 3.4. As a condition to any conveyance by Developer, Developer
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shall execute, acknowledge and record a separate agreement (i.e.,
Assumption Agreement, whereby the Transferee agrees to assume all
obligations of the Agreement.
6. Amendment of Section 3.4. Section 3.4 of the Agreement is amended to
read as follows:
Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer's interest in the Property to the Affordable Housing Owner or
any other single purchaser (or any such purchase or subsequent
purchaser's sale of the entire property), Developer or any such subsequent
purchaser (as applicable), shall be released from its obligations hereunder
with respect to the Property subsequent to the effective date of the sale or
transfer, provided that the seller or transferor (i) was not in breach of this
Agreement at the time of the sale or transfer, and (ii) prior to the sale or
transfer, delivered to City an Assumption Agreement, duly executed by
purchaser or transferee and notarized by a notary public, where the
purchase expressly assumes the obligations under this Agreement with
respect to the Property. Failure to provide an Assumption Agreement
hereunder shall not negate, modify or otherwise affect liability of the
purchaser or transferee pursuant to this Agreement. Nothing contained
herein shall be deemed to grant to City discretion to approve or deny any
such sale or transfer, except as otherwise provided in this Agreement.
7. Amendment of Section 6.3. Section 6.3 of the Agreement is amended to
read as follows:
Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential unit within the boundaries of the Property,
Developer shall pay City a one-time development fee as described herein
the "Development Fee"). The Development Fee may be expended by City
in its sole and unfettered discretion. The amount of the Development Fee
shall be Eight Thousand Six Hundred seventy-five dollars ($8,675.00) per
residential unit. Beginning in 2025, the fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The calculation
shall be made using the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
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In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Development Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
8. Amendment of Section 6.7. Section 6.7 of the Agreement is amended to
read as follows:
Park Fees and Public Art Fee. Prior to the issuance of the building permit
for each residential dwelling unit within the Property, Developer shall pay a
one-time fee in lieu of the dedication of parkland and related improvements
Park Fee"). The amount of the Park Fee shall be Eight Thousand six
hundred seventy-five Dollars ($8,675.00) for each residential dwelling unit
within the Property. If the Park Fee is not paid by January 1, 2025, the Park
Fee shall be adjusted annually commencing January 1, 2025 by the larger
increase of (a) or (b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
all urban consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall be made using
the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Park Fee shall remain at its then current amount until
such time as the next subsequent annual indexing which results in an
increase.
Developer agrees that the above-described payments shall be deemed to
satisfy the parkland dedication requirement set forth at California
Government Code Section 66477 et seq. for the Property. Developer also
understands that because the above-described payments shall be deemed
to satisfy applicable parkland dedication requirements, a public trail through
the Property shall not be required.
Additionally, prior to the issuance of the building permit for the first
residential dwelling unit within the Property, Developer shall pay a one-time
fee for public art, notwithstanding anything to the contrary in the City's
municipal code ("Public Art Fee"). The amount of the Public Art Fee shall
be Four Hundred Twenty Thousand Five Hundred and No/100 Dollars
420,500.00), and shall be payable in eight (8) increments of $52,562.50,
with each increment payable as a condition to the issuance of a building
permit for each of the eight (8) buildings in the Project. If the Public Art Fee
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is not paid by January 1, 2025, the Public Art Fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
all urban consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall be made using
the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Public Art Fee shall remain at its then current amount
until such time as the next subsequent annual indexing which results in an
increase.
9. Amendment of Section 6.23. Section 6.23 of the Agreement is amended
to read as follows:
Conveyance to City of City Site; Construction Easement. As used herein,
the term "City Site" shall mean the property described on Exhibit "B".
Provided the City Manager shall have approved of the condition of the City
Site (and City has been inspecting the City Site pursuant to a separate Right
of Entry and Access Agreement and title to the City Site, and an owner's
title policy for the City Site in a form reasonably acceptable to City is
committed to be issued to City at Affordable Housing Owner's cost by a title
company acceptable to City (and with a reasonable liability amount), then
Affordable Housing Owner shall convey the City Site to City by Grant Deed
in its "as-is", "where-is" condition and "with all faults", without any
representations, warranties or guaranties of any nature.
If at any time the City Manager determines that a construction easement for
the City is necessary within the slope on the southerly fifteen (15) feet of the
Property for purposes of improving the City Site and City Manager requests
such an easement in writing, then Developer (or Affordable Housing Owner
as applicable) shall grant a reasonable construction easement to City which
shall not be subordinate to any deeds of trust or other liens (except liens for
property taxes and assessments not yet due) and shall expire five (5) years
after the last Certificate of Occupancy is issued (and the City Manager is
hereby authorized to execute a Certificate of Acceptance for such
easement).
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10. Section 6.26 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Conveyance of Land for Street Widening; Relocation and Undergrounding
of SCE Lines. Substantially concurrently with the conveyance of the
Property to Affordable Housing Owner (i.e., immediately after such
conveyance), and subject to the issuance of a reasonable owner's title
policy to City at the cost of Affordable Housing Owner, Affordable Housing
Owner shall, in order to enable the City to widen High Street, convey to
the City by grant deed the land described as follows:
Such conveyance shall be free of all deeds of trust and other liens (except
for assessments not yet payable) but otherwise the land shall be conveyed
in its "as-is", "where-is" condition and "with all faults", without any
representations, warranties, or guaranties of any nature. Affordable
Housing Owner shall promptly deliver a title report for such land to City for
review.
In connection with the development of the Project, Developer shall make
commercially reasonable best efforts to relocate and underground the
existing overhead Southern California Edison ("Edison") 66kV utility lines
and poles ("Utility Facilities") located on the Property and the City Site at
its sole cost and expense no later than thirty-six (36) months following the
acquisition of the Property by the Affordable Housing Developer. The
Developer and City acknowledge that Edison shall determine the location
and path of the underground Utility Facilities in compliance with Edison
regulations and state law, and in the event that the hard costs (not soft
cost, including without limitation project management fees and costs, and
design, engineering and administrative fees and costs) of undergrounding
the Utility Facilities on the City Property exceeds $500,000, Developer
shall not be required to underground the Utility Facilities on the City Site
and Developer shall instead relocate the Utility Facilities as set forth in the
Utility Facility redesign by BJ Palmer & Associates and depicted on Exhibit
J" attached hereto (the "Revised Plan") and Developer shall pay $400,000
to the City within thirty (30) days after completion of the relocation of the
Utility Facilities on the City Site.
11. Replacement of Section 6.35; Addition of Section 6.40. Section 6.35 of
the Agreement is hereby replaced with the following:
Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on
each anniversary thereof, Affordable Housing Owner shall pay to City a
community services fee of Eight Thousand Dollars ($8,000.00) increased
by two percent (2%) concurrently with annual payments under the City
Note ( as defined in the Development Agreement).
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The following new Section 6.40 is hereby added to the Agreement:
City Financing of Certain Development Fees through a Residual Receipts
Loan. Developer has requested and City has agreed to finance the
payment of certain portions of City development impact fees required in
Sections 6.3 (Development Fee), and 6.7 (Park Fees and Public Art Fee)
to be paid for construction of the Project in the form of a $3,890,500 fifty-
five -year Residual Receipts Loan (the "City Residual Receipts Loan") as
described below. The City Residual Receipts Loan shall be evidenced by
1he City Loan Note and secured by the City Loan Deed of Trust, which
include a term of 55 years from completion and simple interest at 3.00%
per annum, which shall be repayable solely from the City's pro rata share
of 50% of Residual Receipts (which will be shared by other public lenders
making loans required to finance the development). The City Manager
shall have the authority to adjust the residual receipts percentage in the
City Loan Note before it is executed in order to be consistent with the
foregoing. The City Residual Receipts Loan shall be secured by a deed of
trust encumbering the Project that is subordinate only to the liens of the
Project's bond financing and any state agency debt that is required by
regulation to be senior to the City's Residual Receipts Loan, and the City
Manager shall have the authority to execute reasonable subordination
agreements in connection therewith.
The term "Residual Receipts" in a particular calendar year shall mean the
amount by which Gross Revenue exceeds Annual Operating Expenses.
Gross Revenue" means for each calendar year, all revenue, income,
receipts, and other consideration actually received by the borrower from
operation and leasing of the Project. Gross Revenue includes, but is not
limited to: (1) All rents, fees and charges paid by tenants, payments or other
rental subsidy payments received for the dwelling units, deposits forfeited
by tenants, all cancellation fees, price index adjustments and any other
rental adjustments to leases or rental agreements resulting in actual income
to Affordable Housing Owner (Borrower); (2) The proceeds of business
interruption or similar insurance; (3) Any payment received in consideration
for the leasing or other use of any portion of the Project; ( 4) Subject to the
rights of senior lenders, the proceeds of casualty insurance to the extent not
utilized to repair or rebuild the Project (or applied toward the cost of
recovering such proceeds); (5) Subject to the rights of senior lenders,
condemnation awards for a taking of part or all of the project for a temporary
period; and (6) Gross Revenue shall exclude tenants' security deposits,
loan proceeds, capital contributions or other similar advances.
Annual Operating Expenses" with respect to a particular calendar year
means the following costs reasonably and actually incurred for operation
and maintenance of the project to the extent that they are consistent with
an annual independent audit performed by a certified public accountant
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using generally accepted accounting principles: (1) Property taxes and
assessments imposed on the property; (2) Debt service and associated fees
currently due on a non-optional basis (excluding debt service due from
residual receipts or surplus cash of the project) on loans associated with
development of the project and approved by the City in the approved
financing plan; (3) Property management fees and reimbursements, not to
exceed fees and reimbursements which are standard in the industry, and
pursuant to a management contract approved by the City; (4) Premiums for
property damage and liability insurance; (5) Any annual license or certificate
of occupancy fees required for operation of the project; (6) Annual
regulatory compliance monitoring fees payable to the City; (7) Security
services; (8) Advertising and marketing costs; (9) Cash deposited into
reserves for capital replacements of the project in an amount to be approved
by the City as part of the approved financing plan; (10) Partnership
management fees in the amount approved by the City as part of the
approved financing plan; (11) Utility services not paid for directly by tenants,
including without limitation, water, sewer, and trash collection;
12) Maintenance and repair, including pest control, landscaping, grounds
maintenance, painting and decorating, cleaning, common systems repair,
janitorial supplies and services; (13) Social services fees and expenses;
14) Annual audit fees, inspection fees, or monitoring fees required in
relation to any approved financing; (15) Extraordinary operating costs
specifically approved by the City in its reasonable discretion; (16) Payments
of deductibles in connection with casualty insurance claims not normally
paid from reserves, the amount of uninsured losses actually replaced,
repaired or restored, and not normally paid from reserves; (17) Reasonable
accounting fees and legal fees; (18) Payments of Deferred Developer Fee;
and (19) Other ordinary and reasonable operating expenses approved by
the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation,
amortization, depletion or other non-cash expenses or, any amount
expended from a reserve account.
12. Amendment of Section 7.1. Section 7.1 of the Agreement is amended to
read as follows:
Commitment of Resources. At Developer's expense, City shall use good
faith efforts to commit reasonable time and resources of City staff to work
with Developer on the expedited and parallel processing of applications for
Project Approvals and all Subsequent Approvals and Building Permits for
the Project area and if requested in writing by Developer shall use overtime
and independent contractors whenever reasonably possible. Developer
shall assume any risk related to, and shall pay the additional costs incurred
by City for, any expedited and parallel processing. City shall also use good
faith efforts to commit reasonable time and resources of City staff to work
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with the Ventura County Water Protection District for the processing and
permitting of the plans for the undergrounding of the channel.
13. Deletion of Sections 7.9 and 7.17. Sections 7.9 and 7.17 of the Agreement
are hereby deleted in their entirety, and each is hereby replaced with
Intentionally Omitted."
14. Amendment of Section 7.18. Section 7.18 of the Agreement is amended
to read as follows:
Storm Water/Flood Detention Basin. City agrees that Developer may use
the storm water/flood detention basin located on the City Property and
depicted on Exhibit "H" (attached as Exhibit Hof Instrument No. 20170417-
00050720-0) for storm water/retention purposes for the Project, and City
shall execute and deliver a revocable license agreement to Developer to
that affect.
15. New Section 7 .20. Section 7 is amended to add a new Section 7 .20 to read
as follows:
Reporting. Following the commencement of marketing of the Units,
Developer shall provide City with quarterly reports identifying the Units
leased, and such other information as City may reasonably request (and
such reporting shall be in addition to any reporting required in the Restated
Affordable Housing Agreement). If the project is financed through tax
credits, the submittal of copies of the reports required by the Tax Credit
Allocation Committee shall satisfy the reporting requirement hereunder.
City agrees to exercise good faith efforts to assist Developer in connection
with implementation of the Developer's marketing efforts, including
assistance with promotion, marketing and affordable renter qualification
activities, and by incorporating project materials, presentations, mailings,
information and announcements into City's general housing assistance
presentations, mailings and materials; provided, that, unless City agrees
otherwise in its sole discretion, City shall not be required to develop any
separate Project focused materials or programs or incur any out-of-pocket
expenses in connection with such assistance to Developer.
16. New Exhibit for DA Exhibits D and G. Exhibits D and G to the Development
Agreement are hereby deleted and each is hereby replaced by the new
Exhibit "J" attached hereto (at the very end of this Amendment).
17. New Schedule 1. Schedule 1 of the Development Agreement (which is
referred to in Section 5.1 of the Development Agreement) is hereby
deleted and is replaced with the schedule attached hereto as Exhibit "F".
18. Deletion of Exhibit "C". Exhibit "C" (Purchase Agreement) attached to the
Agreement is hereby deleted in its entirety and replaced with "Intentionally
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Omitted."
19. Operative Date of First Amendment. This First Amendment shall become
operative on th date that Ordinance No. that approves this First Agreement
becomes effective pursuant to Government Code Section 36937, subject
to Section 2 of this First Amendment.
20. Authority. By their signatures below, the individuals signing on behalf of
Developer and City warrant that they have the authority to execute this
First Amendment on behalf of Developer and City, respectively.
21. Entire Agreement. The Development Agreement and this First
Amendment, contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements, understandings, oral
written, are hereby merged herein, except that nothing contained herein is
intended to or shall abrogate, extinguish or supersede the Affordable
Housing Agreement and any other City land use entitlements or conditions
imposed thereby that are applicable to the development of the Property.
Effect of Amendment. Except as amended herein, all other provisions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the City of Moorpark and the Developer have executed
this First Amendment to the Development Agreement on the date first above written.
CITY OF MOORPARK
JakeS.Parvi'n
yor
OWNER/DEVELOPER
ESSEX MOORPARK OWNER, L.P.,;
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership, Its general partner
By: Essex Management Corporation
a California corporation
its general partne:.1..----.
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ALL SIGNATURES MUST BE NOTARIZED
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached , and not the
truthfulness , accuracy , or validity of that document.
State of California
County of Ventura
on Ju.\.'-\. Z Ce, z.02:z.. , before me, £-\\..CS:.'-\. µ. \f
ti 0 (\J _ U-. (in se rt na me a nd -titl e of th e
officer) Notary Public, personally appeared _1-\"CID ___ W\ __ c,::. __ (_f____,
q.----------who proved to me on the basis of satisfactory evidence to b he person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted , executed the
instrument. I certify under PENAL TY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and
correct.
WITN
14 ELISA M,
TAYLOR Not ary Public • Californi
a : San Mat eo
County ~ ommlsston II 234336
2 -ir es Jan 25, 20
306
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark, California 93021
Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I moorpark@moorparkca.gov
A notary publ ic or other officer completing this certificate verifies only the identity of
the ind ividua l who signed the document to which this certificate is attached, and not
the truthfu lness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
On this 1st day of August in the year 2022, before me, Ky Spangler, City Clerk of the City
of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of
sat isfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal
City Clerk
JANICE S. PARVIN
Mayor
DR. ANTONIO CAST RO
Councilmember
CHRIS ENEGREN
Councilmember
DANIEL GROFF
Councilmemb er
DA YID POLLOCK
Coun cilmember
307
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Ventura
On , before me, -------------------------(
insert name and title of the officer)
Notary Public, personally appeared __________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lot 1 of Tract No. 5004 , in the City of Moorpark, County of Ventura, State of
California, as per Map recorded in Book 137, Pages 97 to 102 inclusive of
Miscellaneous Records (Maps) , and amended map of Tract No. 5004, recorded
in Book 146, Pages 1 through 6 inclusive of Miscellaneous Records (Maps), in the
Office of the County Recorder of said county.
APN:513-0-050-205
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EXHIBIT B
DESCRIPTION OF CITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as
Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as
per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of
said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed
April 30, 2009 as Instrument No. 20090430- 00069389 of Official Records of said
County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following
described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No.
2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said
Parcel 1A.
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EXHIBIT C
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Essex Moorpark Owner, L.P.
c/o Essex Portfolio, L.P.
100 Park Place, Suite 200
San Mateo, CA 94403
Attention: Adam Berry
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EXHIBIT D
FORM OF AMENDED AND RESTATED AFFORDABLE
HOUSING AGREEMENT
UNDER SEPARATE PAGE)
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Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
AFFORDABLE HOUSING LIMITED PARTNERSHIP]
Dated as of , 2021 -----
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AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this
Agreement") is to be effective as of _______ , 2021, regardless of the date of
actual execution hereof, and is entered into by and between the CITY OF MOORPARK,
a municipal corporation ("City"), and [AFFORDABLE HOUSING LIMITED
PARTNERSHIP], a California limited partnership ("Owner"), and shall upon the
recordation hereof, supersede and replace that certain Affordable Housing
Agreement between the City and Essex Moorpark Owner, LP. ("Essex") dated April
17, 2017 which was recorded on April 17, 2017 as Instrument Number 20170417-
00050721-0 1/67 in the Official Records of Ventura County, California and was
assigned to Owner pursuant to that certain Assignment and Assumption
Agreement dated _____ , 202_ ("Assignment Agreement").
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records
of the County of Ventura on on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated ______ , 2021 recorded
2021 and was assigned to the Owner pursuant to the Assignment
Agreement (the "Development Agreement") pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager's units) on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPO"), and Zone Change No. 2004-04
ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPO and Mitigation Monitoring Program, as amended, are collectively referred to as the
Project Approvals".
C. The RPO requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
apartment units (~. 198 of the 200 units) in the Project will be restricted by a federal tax
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credit regulatory agreement; such units being described on Exhibit 2 attached hereto by
income level and bedroom count. Two units will be manager's units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
Affordable Rent" shall mean the rent described in Section 2.9, subject to Section
2.10.
Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
Agreement" shall mean this Amended and Restated Affordable Housing
Agreement.
City" shall mean the City of Moorpark, California, a municipal corporation.
County" shall mean Ventura County.
County Median Income" shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by HCD (California Health and
Safety Code 50093(c) and 25 California Code of Regulations Section 6932), or if HCD
discontinues such publication, then such reasonable replacement publication as may be
selected by City in good faith.
Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
Development Agreement" shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on on April 17, 2017, which has been amended by a First Amendment
to Development Agreement dated ______ , 2021 and recorded as Instrument
No. ______ in the Official Records of the County of Ventura.
Extremely Low Income" shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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Extremely Low Income Household" or "Extremely Low Income Tenant" means
individuals or households qualified on the basis of a "certification of tenant eligibility" as
certified by such individual or household, who have a gross income which does not
exceed Extremely Low Income, adjusted for household size.
Extremely Low Income Units" means Units rented to Extremely Low Income
Households.
HCD" shall mean the Department of Housing and Community Development
HCD) of the State of California.
Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined below).
Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit.
Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
Low Income Units" means Units rented to Low Income Households.
Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
Project" is the residential development described in RPO 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functionally related and subordinate
facilities, and all improvements required by the Project Approvals.
Project Approvals" is defined in Recital B above.
Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1 .
Stabilization" shall mean the time at which the Project achieves ninety percent
90%) occupancy for ninety (90) consecutive days.
Term" shall mean from the date of recordation of this Agreement until the later of:
i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
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Units" shall mean residential dwelling units.
Utility Allowance" shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, "Affordable
Housing Financing") to finance the Project, and, although not
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enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager's units) for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the "Compliance Period and
Extend Use Period") and applicable to the tax exempt bonds (the
Qualified Project Period").
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California concurrently
with the closing of the Project Financing, and Owner shall ensure that this Agreement
shall be senior in priority to any lien, encumbrance or other matter of record except for
property taxes and assessments not yet due and existing easements necessary for the
operation of the Project or as otherwise expressly approved in writing by City. The Owner
shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Affordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solarready,
water heater, built-in oven, microwave, stove, bathroom fan, , doors and door hardware,
and floor and window coverings.
Owner agrees not to convert the Project or any part thereof to any type of
common interest development, for-sale condominiums, community apartments, planned
development, stock cooperative, hotel, motel, or any type of congregate care or assisted
living facility. Owner agrees that they shall not knowingly permit any of the Units in the
Project to be used on a transient basis and shall not rent any Unit for a period of less than
thirty (30) days. At no time shall any of the Affordable Units be rented to an employee,
agent, officer, contractor of any owner of any portion of the Property or Project or of any
company affiliated with any such owner, or to any such affiliated company.
2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and approved by City which approval shall not be unreasonably
withheld, conditioned, or delayed ("Rules"). Owner shall submit such Rules to City during
the Initial Rent-Up for the City's approval, which will not be withheld, conditioned or
delayed. Annually, Owner shall submit any amendments, modifications or changes to
such Rules to the City at least forty-five (45) days prior to their proposed effective date
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and all of such amendments, modifications and changes shall be subject to the City's
prior written consent, which will not be withheld, conditioned or delayed. If City does not
consent, City shall specify the reasons in writing so that Owner can revise the
amendment(s), modification(s) or change(s) and re-submit them for City approval, which
will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as amended,
remain in effect (with a copy of the Rules and any amendments). If applicable, this
Agreement shall be consistent with any Extended Use Agreement entered into between
Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. All of the Affordable Units shall be and remain owned by the
Owner for the term of this Agreement. No Affordable Unit may be sold separately.
2.7 Affordable Units Generally.
2.7.1 Accessible Compliant Units. The Project shall comply with the
current California Building Code with respect to the number of Affordable Units that must
be compliant with laws regarding disabled persons (including, without limitation, the
Americans with Disabilities Act) and shall be reserved for and occupied by persons
eligible for such accommodations. Owner shall maintain a waiting list for the affordable
accessible-compliant units, shall promptly deliver a copy thereof to City and shall
thereafter deliver a copy of the revised list to City whenever the list changes. Should
there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner shall add such prospective
tenant to the waiting list for the affordable accessible-compliant units. At the earliest
possible time an Extremely Low or Very Low or Low Income non-accessible compliant
affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy the
accessible compliant unit. Owner shall include a provision in the non-accessible
compliant affordable lease for any accessible-compliant affordable unit that the non-
accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at
Owner's cost, as soon as a non-accessible compliant unit becomes available. While any
of the affordable accessible-compliant units are not being leased to disabled persons (due
to unavailability of such persons to lease), the applicable Affordable Unit shall be leased
in accordance with this Agreement.
At all times, Owner shall keep City informed in writing of the income level applicable
to each accessible compliant unit.
The accessible compliant units shall be consistent with accessibility design criteria
established by the State of California, and Owner shall promptly make any changes to
such units required by new laws or changes in laws. Reasonable accommodation shall
be made, as may be requested by specific Extremely Low or Very Low or Low Income
disabled tenants in such units, to provide features such as smoke alarms with flashing
lights, for instance, if requested by hearing impaired Extremely Low or Very Low or Low
Income tenants in an accessible compliant unit.
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2.7.2 [Intentionally Deleted].
2.7.3 Preference Policies. To the extent permitted by applicable state and
federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next eligible
households to fill the vacancies allowing for priority for City of Moorpark residents to the
extent permitted by applicable state and federal law. Details of this process shall be
submitted in writing to the City for review and approval prior to the issuance of the first
building permit for this project. Additionally, Owner shall submit to City an annual report,
no later than January 30 of each calendar year for the pervious calendar year, describing
the vacancies filled from households on the list, total vacancies filled and the number of
households on the list.
2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will
advise City on a quarterly basis in writing of the number of Affordable Units in the entire
Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a
certificate in the form specified by the City, which is attached hereto as Exhibit No. 3,
which shall include a statement as to whether or not the tenant was a City of Moorpark
resident who on the waiting list and was given priority. Any reporting schedule less
frequent than quarterly must be expressly approved in writing by the City Manager.
2.7.5 Unit Classification. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely
Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy
by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an
Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other
than for a temporary period (not to exceed 60 days), at which time the classification of the
Unit shall be redetermined (provided that upon such reclassification, Owner must remain
in compliance with this Agreement). Owner shall use commercially reasonable efforts to
prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain
and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3
attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner
shall make a good faith effort to verify that the income declared by an applicant in an
income certification is accurate by reviewing any one or more of the following documents,
which shall be provided by the applicant:
a) A pay stub for the most recent pay period;
b) An income tax return for the most recent tax year;
c) An income verification form from the applicant's current employer;
d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
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e) If the applicant is unemployed and has no tax return, another form of
independent verification is needed.
In addition to the above-referenced income certification and subject to fair housing
laws and the rules and regulations of the California Tax Credit Allocation Committee,
eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant
units shall submit a letter from a physician or other document acceptable to the City and
Owner which confirms the accessibility needs of the applicant.
2.7.6 Lease Provisions. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, the Owner shall include provisions in all
signed leases or rental agreements for all Affordable Units which authorize the Owner to
immediately terminate the tenancy of any tenant occupying an Affordable Unit where one
or more of such tenants have misrepresented any fact material to the qualification of such
an individual or household as an Extremely Low or Very Low or Low Income Tenant
and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably
enforce such termination rights (i.e., Owner shall exercise them and not waive them).
Each lease or rental agreement for an Affordable Unit shall also provide that the tenants
of such Affordable Unit shall be subject to annual certification or recertification of income,
as required by the City, and shall be subject to rental increases in accordance with Section
2.11 of this Agreement.
2.7.7 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.7.8 Administration by City: Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner in writing
of the name and phone number of such staff person and any replacements. On or before
the first day of June of each year during the Term of this Agreement, commencing after
the first residential occupancy of the Project, Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the
larger of (a) or (b) below:
a) The percentage increase in the Consumer Price Index during
the prior year, which shall be determined by using the Consumer Price Index by the U.S.
Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for
the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long
Beach-Anaheim index). The calculation shall be made by copying such CPI for the month
of October to the CPI for the previous October.
b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4 ).
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In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to achieve
substantially the same result.
2.7.9 Lease Provisions. The provIsIons relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld, conditioned, or delayed.
If the lease or rental agreement provisions specified in this Section are not approved or
disapproved within thirty (30) days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of marketing,
Owner shall prepare and submit to the City for reasonable approval a marketing and
outreach program which shall contain, among other things, the following: how a potential
tenant would apply to rent a Unit in the Project, including where to apply, applicable
income limits and rent levels; support documentation needed such as pay stubs, tax
returns, or confirmation of disability, if applicable, a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in newspapers of general
circulation, including at least one Spanish-language newspaper and mailing notices of
vacancies to or contacting by telephone potential tenants on the waiting list maintained
by Owner. Notices shall also be given to organizations in Ventura County which provide
referrals or other services to persons with disabilities.
2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy
including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2
every five (5) years) per day until the Affordable Unit is placed back in service except that
such fee shall not be payable for so long as Owner is diligently attempting to repair or re-
build the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Extremely Low Income households shall be
no greater than thirty percent (30%) of thirty percent (30%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance, all in
accordance with California Health and Safety Code Section 50053(b). "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance, all in
accordance with California Health and Safety Code Section 50053(b). "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Low Income households shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowancem all in accordance with
California Health and Safety Code Section 50053(b). "Family size appropriate to the Unit",
as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the California Health and
Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4
persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667) based
on Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas -Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or future
prudent refinancing of this project, utilizes definitions, sources of information, etc., other
than those which have been herein defined and utilized in calculating Affordable Rent,
then the procedure or input which produces the lowest affordable rent, will prevail as to
the applicable Affordable Unit restricted by this Agreement.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant's initial
rental date. This recertification shall be submitted in writing to the City within thirty (30)
days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by an Extremely Low
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or Very Low or Low Income Tenant, as the case may be, shall not exceed the allowable
rent calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Extremely Low Income Units and Very Low Income Units, the following
shall apply:
2.12.1 If, upon income recertification, the Owner determines that the
household income of an Extremely Low Income Tenant has increased above the
maximum allowable household income level of an Extremely Low Income Tenant, but
remains equal to or below that of a Very Low Income household, then, except as provided
below in this Section 2.12, the Owner shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of the County Median Income for the size household
appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to
the occupants thereof. In that event, the next available unit that was previously a Very
Low Income Unit must be rented to (or held vacant and available for immediate occupancy
by) an Extremely Low Income household.
2.12.2 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income level of a Very Low Income Tenant, but remains equal to or
below that of a Low Income household, then, except as provided below in this Section
2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to
such Tenant shall be not greater than one-twelfth ( 1 /12) of thirty percent (30%) of sixty
percent (60%) of the County Median Income for the size household appropriate to the
unit (less the utility allowance), upon sixty (60) days written notice to the occupants
thereof. In that event, the next available unit that was previously a Low Income Unit must
be rented to (or held vacant and available for immediate occupancy by) a Very Low
Income household.
Notwithstanding the foregoing, any such Tenant shall have the right to
request a recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction of
income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period, Owner shall comply with laws and regulations of CTCAC,
CDLAC and any separate/additional recorded restrictions or "Regulatory Agreement"
required by the Affordable Housing Financing and such requirements with respect to over-
income tenants shall prevail.
Owner shall promptly deliver to City copies of all Affordable Housing Financing
regulatory agreements or similar agreements restricting Units in the Project, and shall
notify City and all affected tenants in writing of the expiration of the period at least one (1)
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calendar year (but not more than fourteen (14) months) prior to expiration of the
Compliance Period and Extended Use Period or Qualified Project Period, whichever
expires later, of any effect on the affordability level of their Affordable Units.
Additionally, Owner shall notify City in writing of any re-syndication or extension of
tax credit financing and any defeasance or refinancing of bond financing as soon as they
become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner hereby agrees that specific enforcement of Owner's
agreements to comply with the allowable rent and occupancy restrictions of this
Agreement is one of the reasons for the City's issuing the Project Approvals and entering
into the Amendment to Development Agreement.
2.13.2 Owner further agrees that, in the event of any breach of such
requirements, potential monetary damages to City, as well as prospective Extremely Low
and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and
quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the City
may be entitled as a consequence of the breach hereof, Owner agrees to the imposition
of the remedy of specific performance against it in the case of any event of default by
Owner in complying with the allowable rent, occupancy restrictions or any other provision
of this Agreement. Nothing herein shall impair City's rights to liquidated damages under
Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner shall prepare and submit to the City, on a
quarterly basis, written reports, setting forth the rental activity for the previous month, and
the current total number of Affordable Units occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit
to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a
Certificate of Continuing Program Compliance in a form substantially similar to Exhibit
No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the
Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or
held vacant and available for occupancy by such Tenants during said period; and (b) that
to the knowledge of Owner, no default has occurred under the provisions of this
Agreement; and (c) such other information as may be requested in writing by the City
Manager.
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2.15.3 Owner shall prepare and submit to the City, on an annual basis, a
report in form and substance reasonably satisfactory to the City, not later than March 31st
of each year for the preceding calendar year, summarizing the vacancy rate of the
Affordable Units in the Project on a month-to-month basis for such calendar year.
2.15.4 Owner shall also deliver to City from time to time any other
information about the Affordable Units and the rental thereof as may be reasonably
requested in writing by City within ten (10) days after any such written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or a single
third-party management agent with demonstrated ability to operate, and experience in
operating, residential housing including restricted affordable housing, in a manner that
will provide decent, safe and sanitary residential facilities to occupants thereof, including
experience in complying with reporting requirements and occupancy restrictions similar
to those imposed upon the Project by the terms of this Agreement. (There may only be
one manager for the entire Project at any one time.)
3.2.2 The Owner, directly or through an affiliate, may be the "manager" of
the Project. The Owner may retain on-site personnel and other consultants and service
providers to assist Owner to operate the Project effectively and in compliance with the
provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner seeks to appoint a replacement management
entity to manage the Project, they shall advise the City of the identity of any such qualified
management agent not later than thirty (30) days prior to the effective date of such
appointment. The Owner shall also submit such additional information about the
background, experience and financial condition of any proposed management agent as
is reasonably requested by the City.
3.2.4 Upon the City's written request, the Owner shall cooperate with the
City in an annual review of the management practices and status of Project. The purpose
of each annual review will be to enable the City to determine if the Project is being
operated and managed in accordance with the requirements and standards of this
Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to the
management agent.
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3.3.2 There will be regular meetings as necessary between the Owner and
the management agent for the purpose of reviewing policies, procedures, resident
relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number and
email address of the management agent (so that City may contact the management agent
directly), and shall cause the management agent or its personnel to be available on a
twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing
of management personnel to manage the Project in a prudent and businesslike manner.
In addition, Owner shall provide such security services as may be necessary or
appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal
opportunity guidelines, without regard to race, religion, color, national origin or sex. All
hiring materials will indicate that the Project is an "Equal Opportunity Employer."
Employment grievances, terminations and promotions will be conducted according to
personnel policies and procedures which conform with equal opportunity laws. All
personnel employed at the Project will receive training specific to Owner's policies and
procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner hereby waives any rights they might otherwise have to seek
judicial review of such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner shall pay to City a single community services fee of Eight
Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual
payments under the City Note (as defined in the Development Agreement) ..
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the
Project and the Property in good condition and repair and in a prudent and businesslike
manner. If any portion of the Project is damaged, restoration of the damaged
improvements shall be made by Owner to a condition as good as existed prior to the
damage. Owner shall complete promptly and in a good and workmanlike manner any
improvements which may now or hereafter be constructed as part of the Project and pay
when due all claims for labor performed and material furnished therefor. Owner shall
comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions,
and orders of any governmental authority now or hereafter affecting the conduct or
operation of the Project and of their businesses on the Project or any part thereof or
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requiring any alteration or improvement to be made thereon. Owner shall maintain
grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any
adjacent areas owned by either of them) in good and neat order and repair. Owner hereby
agrees that City may conduct from time to time through representatives of its own choice
who are properly identified as agents of the City, upon reasonable written notice and
subject to reasonable security and safety procedures and rights of tenants in possession,
on-site inspections and observation of such records of Owner relating to the Project and
the Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. The Owner shall conduct an
ongoing maintenance program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment as
well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and cleaned
regularly and kept free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable City ordinances. The
trash areas will be swept regularly and scrubbed with disinfectant when necessary.
Extermination services will be contracted with to provide pest control consistent with high
quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical inspection,
or as occupancy changes, or as the Owner or the management agent may otherwise
deem necessary.
g. Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the work
has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
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ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect for
the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with and observe the
conditions of Project approval, conditions, terms, or covenants of the Development
Agreement or this Agreement, if such failure remains uncured thirty (30) days after written
notice of such failure from the City in the manner provided herein or, with respect to a
default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within ninety
90) days after the first notice of default is given or such longer period as may be agreed
upon by both parties in writing. If a different period or notice requirement is specified
under any other section of this Agreement, then the specific provision shall control.
6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen
15) business days after written notice of such default by City.
6.1 .3 Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate, or report submitted to the City by Owner
proves to have been incorrect in any material respect when made, if such failure remains
uncured thirty (30) days after written notice of such failure from City to Owner in the
manner provided herein or, with respect to a default that cannot be cured within thirty (30)
days, if the Owner fails to commence such cure within such thirty (30) day period or
thereafter fail to diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's relief law or statute of
the United States or of any state or other jurisdiction which is not dismissed within sixty
60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the
benefit of creditors of the Owner in bankruptcy or insolvency or for any of its properties
which (or who) is not discharged within sixty (60) days after its appointment; or (d)
directing the winding up or liquidation of the Owner, providing, however, that any such
decree or order described in any of the foregoing subsections shall have continued
unstayed or undischarged for a period of ninety (90) days.
6.1.5 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
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of its property, unless the property so assigned, sequestered, attached, or executed upon
shall have been returned or released within ninety (90) days after such event (unless a
lesser time period is permitted for cure hereunder) or prior to sale pursuant to such
sequestration, attachment, or execution. If the Owner is diligently working to obtain a
return or release of the property and the City's interest hereunder is not imminently
threatened in the City's reasonable business judgment, then the City shall not declare a
default under this subsection.
6.1.6 The Owner shall have voluntarily suspended its business for a period
of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed
the obligations of Owner in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or encumbrance
on the Property (other than the Development Agreement) and all liens and encumbrances
shall be subordinate and subject to this Agreement, regardless of actual date of
recordation. The City shall consider in good faith, reasonable modifications of this
Agreement typically required by secured lenders and commonly known as "mortgagee
protection" provisions; however, in no event shall any such modification shorten the term
of this Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests in the
Project or the Property, or any part thereof or interest. therein (except the lien of any
mortgage, deed of trust or other recorded instrument securing any construction or
permanent financing for the Project, which shall, in any event, be junior and subordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty-five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall
deposit with City a bond or other security reasonably satisfactory to City in such amounts
as City shall reasonably require, but no more than the amount required to release the lien
under California law and provided further that Owner shall thereafter diligently proceed to
cause such lien, encumbrance or charge to be removed and discharged, and shall, in any
event, cause such lien, encumbrance or charge to be removed or discharged not later
than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
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the preceding sentence, if applicable, then, in addition to any other right or remedy of
City, City may, but shall not be obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or the
amount or otherwise giving security for such claim, in such manner as is or may be
prescribed by law. Owner shall, immediately upon written demand thereof by City, pay
to City an amount equal to all costs and expenses incurred by City in connection with the
exercise by City of the foregoing right to discharge any such lien, encumbrance or charge.
To the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other costs
of enforcing the obligations secured hereby including without limitation, recording fees,
receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred
by the prevailing party in connection with the enforcement of this Agreement, whether or
not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement: Remedies. Upon the occurrence of any
Event of Default by Owner, City shall be entitled to enforce performance of any obligation
of Owner arising under this Agreement and to exercise all rights and powers under this
Agreement or any law now or hereafter in force. Additionally, without limiting any of City's
other rights or remedies, upon any leasing of a particular Affordable Unit in violation of
this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase
by $2 every five (5) years) per day until the violation has been cured (it being understood
that if the Affordable Unit is unavailable due to material damage or destruction, Section
2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in
addition to enforcement costs and any other damages to which City may be entitled, all
rent charged by Owner in excess of the rental amounts permitted under this Agreement,
with interest thereon from the date paid to Owner until the date paid by Owner to City at
the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner
stipulates, acknowledges and agrees that the amounts described herein are reasonable
estimates of the minimum damages incurred by the City and public as a result of
violation(s), and that actual damage would be impractical or impossible to determine with
accuracy. No remedy herein conferred upon or reserved to City is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy given by this
Agreement to the City may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by the City, and the City may pursue
inconsistent remedies. The City shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the Owner to perform its obligations and
covenants under this Agreement or to enjoin acts or things which may be unlawful or in
violation of the provisions hereof.
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ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
If to the Owner:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attention: Adam Berry
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by overnight
messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7 .3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7 .5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to City in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
other than pertaining to this Agreement), shall be rendered against Owner, or their assets
other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any of their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7 .8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the other party. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and such wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7 .9 Enforcement; Waiver. The City may take whatever action at law or in equity
as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7 .10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor-in-interest of
such party who has acquired any portion of or interest in the Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7 .13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property "run with the land".
7.14 Transfers. Owner shall provide the City with at least thirty (30) days' prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7 .15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7 .16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7 .17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7 .18 Controlling Law: Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Court for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its address for notices
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pursuant to this Agreement. Nothing contained herein shall affect the right of the City to
serve process in any other manner permitted by law.
7 .19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
a) "Hazardous Materials" shall mean:
1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601 (14)) or Section 25281 (d) or 25316 of the
California Health and Safety Code at such time;
2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117 .5 or 25501 U) of the California
Health and Safety Code at such time;
3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
b) "Hazardous Materials Laws" means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner hereby agrees that:
a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as "Hazardous
Materials Claims"); (3) the presence of any Hazardous Materials in, on or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "borderzone
property" under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of (1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occupying or
present on the Project or the Property, in connection with the handling, treatment,
removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Property. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Materials Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7.19.4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Property
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor's liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then-current limit.
b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it continues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not less than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one-half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best's Insurance Guide, or any successor thereto
or if there be none, an organization having a national reputation) as having a "Best's
Rating" of "A" and a "Financial Size Category" of at least "VII" or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies shall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance.
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7 .24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7 .25 Assessment Districts: Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the "Developer"
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due to a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements that
are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner agrees that densities vested
and incentives and concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to which Developer is
entitled under the Moorpark Municipal Code, Government Code Sections 65915 through
65917 .5 or both Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and include all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second "back-up" district) or one
Assessment District containing two zones (one zone to be fully funded and the other to
be a back up zone), as determined by the City at the City's discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPO 2012-02 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.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parking spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner acknowledges the City's ability to modify the
development standards and to change the General Plan designation and zoning of the
Property upon the termination or expiration of the Development 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 General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City ..
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 (attached as Exhibit No. 5 of Instrument No. 20170417-00050720-0) for storm
water/retention purposes for the Project, and City shall execute and deliver a revocable
license agreement to Owner to that effect.
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WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
51
CITY:
CITY OF MOORPARK
By:-------------
Print Name: ----------
TitIe: ------------
OWNER:
Essex Moorpark Owner, L.P.
By:-------------
Print Name: ----------
TitIe: ------------
343
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of Ventura
On ____________ , before me,------------~
insert name and title of the officer)
Notary Public, personally appeared __________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of Ventura
On ____________ , before me, ____________ _
insert name and title of the officer)
Notary Public, personally appeared __________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County
Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2 nd Thence, South 27°20'34West 36.75 feet;
3 rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel
1A.
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EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Low Income 51 % and Above
Type of Number of Household Size
Unit Units Adjustment
1-br 56 2 persons
2-br 46 3 persons
3-br 36 4 persons
Total 138
Very Low Income 31%-50%
Type of Number of Household Size
Unit Units Adjustment
1-br 16 2 persons
2-br 12 3 persons
3-br 12 4 persons
Total 40
Extremely Low Income 30% and Below
Type of
Unit
1-br
2-br
3-br
Total
Total
Units
Number
Units
of Household Size
Adjustment
8 2 persons
6 3 persons
6 4 persons
20
198
Utility
Allowance
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
The units restricted by this Affordable Housing Agreement, and subject to
the California Health and Safety Code (and related California Code of Regulations)
definitions, rent limits/calculations, and income levels are as follows:
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All Extremely Low Income Units (i.e. 20 units); all Very Low Income Units (i.e.
40 units) and thirty-eight (38) of the Low Income Units (consisting of 18 one-
bedroom units; 10 two-bedroom units; and 10 three bedroom units), for a total of
98 units.
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EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification / Recertification Unit Number --------------
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied
for in the above apartment project. Listed below are the names of all persons who intend
to reside in the unit:
1.
Name of Members
Of the
Household
Income Computation
2.
Relationship
to Head of
Household
3.
Age
4.
Social Security
Number
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
for a unit is$ _________ 1
If this form is being completed in accordance with recertification of an Extremely Low Income Tenant's or Very Low
Income Tenant's or a Low Income Tenant's occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a
Low Income Unit, respectively, this form must be completed based upon the current income of the occupants.
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Included in the total anticipated income listed above are:
a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal services;
b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from
the operation of a business or profession will be included in income, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation by the family;
c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only as
authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an
investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net family
assets in excess of $5,000, annual income shall include the greater of the actual income
derived from all net family assets or a percentage of the value of such assets based on
the current passbook savings rate.
d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that are
received in a lump sum amount or in prospective monthly amounts;
e) payments in lieu of earnings, such as unemployment and disability compensation,
workers' compensation and severance pay;
f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the welfare
assistance agency in accordance with the actual cost of shelter and utilities, the amount
of welfare assistance income to be included as income shall consist of:
1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
2) the maximum amount that the welfare assistance agency could in fact allow
the family for shelter and utilities. If the family's welfare assistance is ratably reduced
form the standard of need by applying a percentage, the amount calculated under this
paragraph shall be the amount resulting from one application of the percentage;
g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from persons
not residing in the dwelling;
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h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the special
pay to a family member serving in the Armed Forces who is exposed to hostile fire; and
Excluded from such anticipated income are:
a) income from employment of children (including foster children) under the age of
18 years;
b) payments received for the care of foster children or foster adults (usually persons with
disabilities, unrelated to the tenant family, who are unable to live alone);
c) lump sum additions to family assets, such as inheritances, insurance payments
including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
e) income of a live-in aide, as defined by 24 CFR §5.403;
f) the full amount of student financial assistance paid directly to the student or to the
educational institution;
g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits because
they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
3) amounts received by a participant in other publicly assisted programs which
are specifically for or in reimbursement of out-of-pocket expenses incurred (special
equipment, clothing, transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
4) amounts received under a resident service stipend is a modest amount (not
to exceed $200 per month) received by a resident for performing a service for the Public
Housing Issuer or owner, on a part-time basis, that enhances the quality of life in the
development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
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5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family member as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
i) temporary , nonrecurring or sporadic income (including gifts);
U) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
k) earnings in excess of $480 for each full-term student 18 years old or older
excluding the head of household and spouse);
I) adoption assistance payments in excess of $480 per adopted child; and
m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or ----------
b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Yes No ----------
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c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
Yes _____ No
d) If the answer to (c) above is yes, state:
1) the combined total value of all such assets: $. ________ _
2) the amount of income expected to be derived from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ _______ , and
3) the amount of such income, if any, that was included in item 6 above:
8. Are all of the individuals who propose to reside in the unit full-time students*?
Yes _____ No
A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No ----------
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the "Owner"), has
any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner
to determine maximum income for eligibility to occupy the unit; and I/we declare that all
information set forth herein is true, correct and complete and based upon information I/we
deem reliable and that the statement of total anticipated income contained in paragraph
6 is reasonable and based upon such investigation as the undersigned deemed
necessary.
61
353
11 . I/We will assist the Owner in obtaining any information or documents required to
verify the statements made herein, including either an income verification from my/our
present employer(s) or copies of federal tax returns for the immediately preceding
calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent
or terminate my/our occupancy of the unit by institution of an action for ejection or other
appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this ____ day of _________ , 20 ____ (year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
62
354
FOR COMPLETION BY OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $ -----
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($ _____ );
2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount in
7(d)(1) would be if invested in passbook savings ($ ------~· subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance ($
3)
above:$
Enter at right the greater of the amount calculated under (1) or (2)
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $ _______ _
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
Qualifies the applicant(s) as an Extremely Low Income Tenant(s).
3. Number of apartment unit assigned: ____ Bedroom size: ____ _
Rent:$ ------
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other( ________________ )
6. Is occupant a City of Moorpark resident on the waiting list who was given priority?
Yes:___ No: __ _
Manager Date
63
355
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64
356
INCOME VERIFICATION
FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages
Overtime
Bonuses
Commissions
Current Base Pay
Gross) Other Income
Avg. Total Hours
Worked Weekly
Total Current Income --------
Year-to-Date Income --------
I Pay Period: [] Weekly I [ ] Bi-weekly I [ ] Monthly I [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase$ _____ per ____ start
date: ----
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
65
357
APPLICANT
hereby grant you perm1ss1on to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
Date
Print Name (Resident)
Please send to:
Management Co.
or Owner)
Signature (Resident)
66
358
INCOME VERIFICATION
for self-employed persons)
hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
67
359
INCOME VERIFICATION
for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to __________________ the
specific information requested below:
Date: -----------------------------
Signature: __________________________ _
Social Security No.: _________ _
Name (Print): ____________ _
Address(Print) ________________________ _
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): ________ _ Amount:$ -----------
Medicare Deductions: $ -----------
Are benefits expected to change? [ ] Yes [ ] No
If yes, please state date and amount:
Date: of change ----------
Amount$ ---------
68
360
If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption:
Amount: ----------------
Date:
Signature:
Title:
Please send form to:
69
361
INCOME VERIFICATION
for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the ______________ Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date: ----------------------------
Signature: __________________________ _
Caseload Number: ----------
Name (Print): __________ _
Case Number:
Case Worker: -----------
1. Number of persons included in budget: __________ _
2. Total monthly budget$ _______________ _
a) Amount of grant$ _______ _
b) Date aid last began: ________ _
c)Other income and source: _________________ _
d) Is other income included in total budget? Yes No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.): ____ _
4. If recipient is not receiving full grant, please indicate reason:
Overpayment due to client's failure to report other income
Computation error
Other: --------------------------
70
362
Date when full grant will resume: ___________________ _
Date: --------------
Case Worker's Signature: _________ _
Telephone: ___________ _
District Office: --------------
Your very early response will be appreciated.
Please return form to:
71
363
DECLARATION OF NO INCOME
As managing agents for
Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
CERTIFICATION
Name of Management Company
By:
Name and Title
I, _____________ , do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
72
364
Support Verification
Source's Mailing Address: ---------
Phone#: ----------
Fax#: ------------
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information requested
below regarding the above referenced individuals. This information will be used only for
determination of eligibility and/or rent computation. You will notice a release of
information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature: _________________ _
Social Security #: ______ _
73
365
Please complete the following. If the monies are based on a percentage of the payer's
income, please indicate the average amount per period.
Tvoe of Benefit Amount Freauencv
Child Support ( ) weekly ( ) monthly (
yearly
Family Support ( ) weekly ( ) monthly (
yearly
Alimony ( ) weekly ( ) monthly (
yearly
Other ( ) weekly ( ) monthly (
yearly
Please list
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ No
Do you anticipate any changes in the next 12 months? ] Yes [ ] No
Comments: _________________________ _
Signature
SSN#:
of Source: --------------
Date Completed Form: ____________ _
74
366
EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING __ _
The undersigned, ____________ , as the authorized
representative of ___________ (the "Owner"), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites ("Developer") and the City of the City of Moorpark (the
City"), dated as of ________ , 20_.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date an Extremely Low
Income Tenant or Very Low Income Tenant vacated such Unit, as indicated:
Occupied by Extremely Low Income Tenants:
Number of Units: ------------
Occupied by Very Low Income Tenants:
Number of Units: -------------
Occupied by Low Income Tenants:
Number of Units: -------------
Held vacant for occupancy continuously since last occupied by Extremely Low Income
Tenants and Very Low Income Tenants and Low Income Tenants.
Vacant Units
Number: ---------
Occupied Units
Number: ·----------
Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants
who commenced occupancy of Units during the preceding [month/quarter]:
Extremely Low Income:
Units Nos.: _______________________ _
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367
Very Low Income:
Units Nos.: -------------------------
Low Income:
Units Nos.: -------------------------
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of each
apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and
number of bedrooms of each Unit. It also indicates which Units are occupied by Extremely
Low Income Tenants, Low Income Tenants and Very Low Income Tenants and which
Units became Extremely Low Income Units, Low Income Units and Very Low Income
Units during the preceding [month/quarter]. The information contained thereon is true
and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
during such [month/quarter] and of Owner's performance under the Affordable Housing
Agreement among Owner and the City, has been made under the supervision of the
undersigned; and (2) to the best of the knowledge of the undersigned, based on the
review described in clause (1) hereof, the Owner is not in default under any of the terms
and provisions of the above documents [or describe the nature of any default in detail and
set forth the measures being taken to remedy such default: __________ _
76
368
EXHIBIT E
FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST
UNDER SEPARATE PAGE)
77
369
3,890,500.00
PROMISSORY NOTE
City Loan)
2021
FOR VALUE RECEIVED, Moorpark Casey Road LP, a California limited
partnership (the "Borrower"), hereby promises to pay to the order of the City of Moorpark, a
California municipal corporation (the "Lender" or ("City"), whose address is 799 Moorpark
A venue, Moorpark, California 93021, the principal amount of Three Million Eight Hundred
Ninety-Thousand Five Hundred Dollars and 00/100 ($3,890,500).
1. The Loan. This Promissory Note (the "Note") evidences the obligation of the
Borrower to the Lender for the repayment of funds loaned to the Borrower for the payment of
certain City development fees (the "Loan") in the connection with the development of a 200-unit
low-income apartment complex to be located in the City of Moorpark (the "Project").
2. Interest. Simple interest shall accrue on the outstanding principal balance of this
Promissory Note ("Note") from the date of this Note at a rate equal to 3% per annum until the
Maturity Date (as defined below). Interest shall be calculated based on a 365 day year, upon actual
days elapsed.
3. Maturity Date. The principal amount of this Note along with all accrued and unpaid
interest and/or other amounts due shall be due and payable on the fifty-fifth (55) anniversary of
the date of issuance of certificates of occupancy for the Project (the "Maturity Date"); provided,
however, that the Maturity Date may be accelerated in accordance with the terms and provisions
of this Note.
4. Payments. Beginning in the year following the year in which the Project receives
its certificate of occupancy, annual payments of interest and principal hereunder for each year shall
be made on or before June 1 of the following year only to the extent of 50% may be reduced and
shared pro rata with other soft lenders in the sole and absolute discretion of the City Manager of
available Residual Recepits (as defined below). On or prior to the date that the Borrower pays its
annual payment, Borrower shall submit the following to the City: (1) A statement of Residual
Receipts for the relevant period, for the Project and the status of all reserve funds, including
without limitation; (2) A statement from the independent public accountant that audited the
Borrower's financial records for the relevant period, which statement must confirm that Borrower's
calculation of the City's share of Residual Receipts is accurate based on Gross Revenue (as defined
below) and Annual Operating Expenses (as defined below); and (3) Any additional documentation
reasonably required by the City to substantiate Borrower's calculation of City's share of Residual
Receipts. All payments received by Lender shall be applied first to accrued interest then to the
unpaid principal balance.
For the purposes of this Note, the term "Residual Receipts" in a particular calendar year
shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses.
78
370
Gross Revenue" means for each calendar year, all revenue, income, receipts, and other
consideration actually received by the borrower from operation and leasing of the Project. Gross
Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants, payments
or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all
cancellation fees, price index adjustments and any other rental adjustments to leases or rental
agreements resulting in actual income to Borrower; (2) The proceeds of business interruption or
similar insurance; (3) Any payment received in consideration for the leasing or other use of any
portion of the project; ( 4) Subject to the rights of senior lenders, the proceeds of casualty insurance
to the extent not utilized to repair or rebuild the project ( or applied toward the cost of recovering
such proceeds); (5) Subject to the rights of senior lenders, condemnation awards for a taking of
part or all of the project for a temporary period; and (6) Gross Revenue shall exclude tenants'
security deposits, loan proceeds, capital contributions or other similar advances.
Annual Operating Expenses" with respect to a particular calendar year means the
following costs reasonably and actually incurred for operation and maintenance of the project to
the extent that they are consistent with an annual independent audit performed by a certified public
accountant using generally accepted accounting principles: (1) Property taxes and assessments
imposed on the property; (2) Debt service and associated fees currently due on a non-optional basis
excluding debt service due from residual receipts or surplus cash of the project) on loans
associated with development of the project and approved by the City in the approved financing
plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements
which are standard in the industry, and pursuant to a management contract approved by the City;
4) Premiums for property damage and liability insurance; (5) Any annual license or certificate of
occupancy fees required for operation of the project; (6) Annual regulatory compliance monitoring
fees payable to the City; (7) Security services; (8) Advertising and marketing costs; (9) Cash
deposited into reserves for capital replacements of the project in an amount to be approved by the
City as part of the approved financing plan; ( 10) Partnership management fees in the amount
approved by the City as part of the approved financing plan; ( 11) Utility services not paid for
directly by tenants, including without limitation, water, sewer, and trash collection; (12)
Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and
decorating, cleaning, common systems repair,janitorial supplies and services; (13) Social services
fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in relation
to any approved financing; ( 15) Extraordinary operating costs specifically approved by the City in
its reasonable discretion; (16) Payments of deductibles in connection with casualty insurance
claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired
or restored, and not normally paid from reserves; ( 17) Reasonable accounting fees and legal fees;
18) Payments of Deferred Developer Fee; and (19) Other ordinary and reasonable operating
expenses approved by the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or
other non-cash expenses or, any amount expended from a reserve account.
5. Prepayment. The principal and interest of this Note may be voluntarily prepaid at
any time, in its entirety or in any partial amount, without premium or penalty.
6. Security. Payment of the indebtedness evidenced by this Note is secured by that
certain Subordinated Deed of Trust, Fixture Filing, and Assignment of Rents (City Loan) (the
79
371
Deed of Trust"), of even date herewith, and made by Borrower, as trustor, to Commonwealth
Land Title Insurance Company, as trustee, for the benefit of Lender, as beneficiary, which
encumbers real property in the County of Ventura, State of California, as more particularly
described in Exhibit A to the Deed of Trust, together with the improvements to be located thereon.
7. Events of Default. The occurrence of any of the following, whatever the reason
therefor, shall constitute an "Event of Default" hereunder:
a. Borrower fails to make any payment of principal or interest hereunder when
due; or
b. Borrower fails to pay any other amount owing to Lender under this Note,
or fails to perform any other obligation under this Note; or
c. Borrower is dissolved, liquidated or terminated, or all or substantially all of
the assets of Borrower are sold or otherwise transferred without Lender's prior written consent; or
d. Borrower is the subject of an order for relief by a bankruptcy court, or is
unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit
of creditors; or Borrower applies for or consents to the appointment of any rehabilitator or similar
officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of Borrower and the
appointment continues undischarged or unstayed for 90 days; or Borrower institutes or consents
to any bankruptcy, insolvency, reorganization, arrangement, readjustment or debt, dissolution,
custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or
any part of its property; or any similar proceeding is instituted without the consent of Borrower,
as the case may be, and continues undismissed or unstayed for 90 days; or any judgment, writ,
warrant or attachment or execution, or similar process is issued or levied against any property of
Borrower and is not released, vacated or fully bonded within 90 days after its issue or levy; or
e. An event of default by Borrower has occurred and is continuimg past
applicable notice and cure periods under that certain Amended and Restated Affordable Housing
Agreement to be entered into between Lender and Borrower and recorded in the Official Records
of Ventura County concurrently herewith.
Lender agrees any cure of any Event of Default or default made by the investor
limited partner of Borrower shall be deemed to be a cure by Borrower and shall be accepted or
rejected on the same basis as if made by Borrower.
8. Acceleration and Other Remedies. If the Lender believes, in it sole judgment, that
an Event of Default has occurred and such Event of Default is not cured within sixty (60) days
after written notice to Borrower and the investor limited partner of Borrower, the Lender, at its
option, within sixty (60) days thereafter, may declare the outstanding principal and interest to be
immediately due and payable. Notwithstanding the foregoing, the cure periods hereunder shall not
apply to the final payment due hereunder on the Maturity Date or to any acceleration of the Loan.
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9. Subordination; No Acceleration Upon Transfer or Refinancing.
a. Lender shall execute commercially reasonable subordination agreements as
requested by the Borrower's senior lender(s) to subordinate this Note and the Deed of Trust
to the Borrower's senior bond financing encumbering the Project property.
b. The Borrower shall be permitted to refinance its senior bond financing and
the Lender shall also subordinate this Note and the Deed of Trust to any refinancing of
such senior bond financing so long as the amount to be subordinated does not exceed the
original principal balance of such loan plus reasonable closing costs. In such event,
subordination of the Loan to such refinancing shall be subject to the Lender's sole
discretion.
I 0. Non-Recourse. Anything contained in any provision of the Deed of Trust or this
Note notwithstanding, the Loan shall be a nonrecourse obligation of Borrower and its partners
except in the event of fraud or a material misrepresentation of fact by Borrower.
11. Application of Payments. All payments made hereunder shall be applied first to
interest due and then in reduction of the principal balance.
12. Waivers. Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of protest and all other notices and demands of every kind that would otherwise
be available in connection with this Note.
13. Notice. Any notice, consent or approval required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given (i) one business day
after being deposited with Federal Express or another reliable overnight courier service for next
day delivery, (ii) upon electronic mail transmission ( except that if the date of such transmission is
not a business day, then such notice shall be deemed to be given on the first business day following
such transmission), or (iii) two business days after being deposited in the United States mail ,
registered or certified mail, postage prepaid, return receipt required, and addressed as follows:
If to Borrower:
With a copy to:
With a copy to :
With a copy to:
Danco Communities
5251 Ericson Way
Arcata, CA 95521
Attention: Chris Dart
cdart@ danco-group.com)
Odu & Associates, PC
31805 Temecula Parkway #720
Temecula, CA 92592
Attention: Nkechi C. Odu, Esq.
nkechi @ odulaw.com)
EQUITY INVESTOR]
EQUITY INVESTOR COUNSEL]
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If to Lender:
With a copy to:
City of Moorpark
799 Moorpark A venue
Moorpark, California 93021
Attention: Troy Brown, City Manager
CityManager@moorparkca.gov)
Addresses for notice may be changed from time to time by written notice to the other party.
15. Miscellaneous. Time is of the essence hereof. All payments hereunder shall be
made in lawful money of the United States of America. This Note shall be governed by the laws
of the State of California.
SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as
of the date first above written.
BORROWER"
By: Johnson & Johnson Investments, LLC, a California limited liability company
Its Co-Administrative General Partner
By: __________ _
Daniel J. Johnson, Member
By: Community Revitalization and Development Corporation
Its Managing General Partner
By: -------------
David Rutledge, President
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RECORDING REQUESTED BY
Commonwealth Land Title Insurance Company
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark A venue
Moorpark, California 93021
Attention: City Clerk
Space Above This Line For Recorder's Use)
SUBORDINATED DEED OF TRUST,
FIXTURE FILING, AND ASSIGNMENT OF RENTS
THIS SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT
OF RENTS ("Subordinated Deed of Trust") is made on this _day of _____ 2022, by
Moorpark Casey Road LP, a California limited partnership, as trustor ("Borrower") to
Commonwealth Land Title Insurance Company ("Trustee"), for the benefit of CITY OF
MOO RPARK, a California municipal corporation ("Lender").
The Borrower, in consideration of the indebtedness recited and the trust created in this
Subordinated Deed of Trust, irrevocably grants and conveys to Trustee, in trust, with power of
sale all of its right title and interest in and to that certain real property located in the City of
Moorpark, County of Ventura, State of California, legally described in "Exhibit A" attached
hereto and made a part hereof.
Together with all of the improvements now or hereafter erected on said property, and all
easements, rights, appurtenances, rents (subject, however, to the rights and authorities given in
this Subordinated Deed of Trust to the Lender to collect and apply such rents), royalties, mineral,
oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or
hereafter attached to said property, all of which including replacements and additions thereto,
shall be deemed to be and remain a part of the property covered by this Subordinated Deed of
Trust; and all of the foregoing, together with said property are referred to in this Subordinated
Deed of Trust as the "Property";
This Deed of Trust constitutes a financing statement filed as a fixture filing under
Article 9 of the California Uniform Commercial Code, as amended or recodified from time to
time, covering any property which now is or later may become fixtures attached to the Property.
For this purpose, Borrower is debtor and Lender is secured party.
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To secure for the benefit of Lender the repayment of the indebtedness evidenced by the
Borrower's promissory note dated ______ 2022 (the "Note") in the principal sum of
3,890,500.00 and the performance of the covenants and agreements of the Borrower contained
in this Subordinated Deed of Trust, the Note, and that certain Amended and Restated Affordable
Housing Agreement to be entered into between Lender and Borrower and recorded in the
Official Records of Ventura County concurrently herewith.
Borrower covenants and agrees as follows:
PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall pay when due the
interest and the principal of the indebtedness evidenced by the Note from the sources and
pursuant to the terms of the Note.
COMPLIANCE WITH SENIOR DEED OF TRUST. Borrower covenants and agrees to
comply with the terms and conditions of any senior deeds of trust recorded against the Property
collectively, the "Senior Encumbrances").
CHARGES AND LIENS. Borrower shall pay all taxes, assessments and other charges,
fines and impositions attributable to the Property which may attain a priority over this
Subordinated Deed of Trust. Borrower shall promptly pay when due all installments or
payments required by Lender and comply with all obligations of any deed of trust that is prior to
this Subordinated Deed of Trust.
INSURANCE PROCEEDS. Any insurance proceeds received as a result of damage to
the Property from fire or other calamity shall be first expended as required by any Senior
Encumbrances.
PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants
and agreements contained in this Subordinated Deed of Trust, or if any action or proceeding is
commenced which materially affects the Lender's interest in the Property, including, but not
limited to, default on or foreclosure of a prior deed of trust, eminent domain, insolvency, code
enforcement, or arrangement or proceedings involving a bankrupt or decedent, then the Lender at
Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums
and take such action as is necessary to protect the Lender's interest including, but not limited to,
disbursement of reasonable attorney's fees and entry upon the Property to make repairs, but shall
have no right of reimbursement.
INSPECTION. Lender may make or cause to be made reasonable entries upon and
inspections of the Property, provided that the Lender shall give Borrower notice prior to any such
inspection specifying reasonable cause therefor related to the Lender's interest in the Property.
CONDEMNATION. Subject to the rights of the holder of a prior deed of trust, the
proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of
condemnation, are hereby assigned and shall be paid to Lender.
In the event of a total taking of the Property, the proceeds shall be treated as if
received from a sale of the Property. The proceeds shall be applied to the sums to be repaid in
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377
the amount and manner described in the Senior Encumbrances and the documents evidencing the
indebtedness secured thereby. Any part of the proceeds remaining after these amounts have been
paid shall be paid to the Borrower. In the event of a partial taking of the Property, unless
Borrower and Lender agree in writing, the proceeds shall be treated as if received from a sale of
that portion of the Property which is taken in the condemnation. The percentage value of the
portion taken, as compared to the full value of the entire Property, shall be determined by
dividing the condemnation proceeds by the fair market value of the entire Property just prior to
the taking. This percentage value, once determined, shall be used in the following manner to
allocate the condemnation proceeds:
a. First, to the payment of any amount owing under the Senior
Encumbrances and the documents evidencing the indebtedness secured thereby;
b. Second, to payment of the Note;
c. Third, to the Borrower.
BORROWER NOT RELEASED. Extension of the time for payment or modification of
amortization of the sums secured by this Subordinated Deed of Trust granted by the Lender to
any successor in interest of Borrower shall not operate to release, in any manner, the liability of
the original Borrower and Borrower's successors in interest. Lender shall not be required to
commence proceedings against such successor or refuse to extend time for payment or
modification of amortization of the sums secured by this Subordinated Deed of Trust by reason
of any demand made by the original Borrower and Borrower's successors in interest.
FORBEARANCE BY LENDER NOT AW AIYER. Any forbearance by the Lender in
exercising any right or remedy hereunder, otherwise afforded by applicable law, shall not be a
waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to
accelerate the maturity of the indebtedness secured by this Subordinated Deed of Trust.
REMEDIES CUMULATIVE. All remedies provided in this Subordinated Deed of Trust
are distinct and cumulative to any other right or remedy under this Subordinated Deed of Trust or
afforded by law or equity, and may be exercised concurrently, independently or successively.
SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
CAPTIONS. The covenants and agreements contained in this Subordinated Deed of Trust shall
bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and
Borrower, subject to the provisions of Section 16 hereof. All covenants and agreements of
Borrower shall be joint and several. The captions and headings of the Sections of this
Subordinated Deed of Trust are for convenience only and are not to be used to interpret or define
the provisions hereof.
NOTICE. Except for any notice required under applicable law to be given in another
manner, any notice to Borrower or Lender provided for in this Subordinated Deed of Trust shall
be given at the addresses provided in the Note.
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378
GOVERNING LAW; SEVERABILITY. This Subordinated Deed of Trust shall be
governed by the laws of the State of California. In the event that any provision or clause of this
Subordinated Deed of Trust or the Note as incorporated herein conflicts with applicable law,
such conflict shall not affect other provisions of this Subordinated Deed of Trust or the Note
which can be given effect without the conflicting provision, and to this end the provisions of the
Subordinated Deed of Trust and Note are declared to be severable.
TRANSFER OF THE PROPERTY. If all or any of the Property is sold or transferred by
Borrower, excluding permitted transfers pursuant to this Subordinated Deed of Trust or the Note,
all the sums secured by this Subordinated Deed of Trust shall be immediately due and payable.
In the event of such an acceleration, Lender shall mail Borrower notice of the acceleration in
accordance with Section 12 hereof. Such notice shall provide a period of not less than 60 days
from the date the notice is mailed within which the Borrower may pay the sums declared due. If
the Borrower fails to pay such sums prior to the expiration of such period, Lender may, without
further notice or demand on Borrower, invoke any remedies permitted by Section 16 hereof.
ACCELERATION; REMEDIES Except as provided in Section 15 hereof, upon
Borrower's breach of any covenant or agreement of Borrower in this Subordinated Deed of Trust
or the Note as incorporated by reference in this Subordinated Deed of Trust, including the
covenants to pay, when due, any sums secured by this Subordinated Deed of Trust, Lender, prior
to acceleration, shall mail notice to Borrower as provide in Section 12 hereof specifying: (a) the
breach; (b) the action required to cure such breach; ( c) a date by which such breach must be
cured; and ( d) that failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Subordinated Deed of Trust and sale of the
Property. If the breach is not cured on or before the date specified in the notice, the Lender, at its
option, may seek remedies in the manner provided in the Note. Lender shall be entitled to
collect all reasonable costs and expenses incurred in pursuing the remedies provided in this
Section 16, including, but not limited to, reasonable attorneys' fees.
Subject to the terms and conditions provided herein, if Lender invokes the power
of sale, Lender shall have appraised, or shall cause Trustee to have appraised, the Property to
determine its fair market value. The Lender shall also execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause Property
to be sold, and shall cause such notice to be recorded in each county in which the Property or
some part thereof is located. Lender or Trustee shall mail copies of such notice in a manner
prescribed by applicable law. After the lapse of such time as may be required by applicable law,
Trustee, without demand on Borrower, shall sell the Property at public auction to the highest
bidder at the time and place and under the terms designated in the notice of sale in one or more
parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any
parcel of the Property by public announcement at the time and place of any previously scheduled
sale. Lender or Lender's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so
sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed
shall be prime facie evidence of the truth of the statements made therein. Trustee shall apply the
proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale,
including, but not limited to, reasonable Trustee and attorneys' fees and costs of title evidence;
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379
b) to all sums secured by the lien of some other or later security instrument, as evidenced by a
Note, by and between the Borrower and Borrower's lender, that is either prior in lien priority to
the priority of this Subordinated Deed of Trust or to which the Lender has subordinated its lien
rights and, thereby, placed itself in a subordinated position, ( c) to all sums secured by this
Subordinated Deed of Trust, as evidenced by the Note; and ( d) the excess, if any, to the person or
persons legally entitled thereto.
BORROWER'S RIGHT TO REINSTATE. Notwithstanding Lender's acceleration of the
sums secured by this Subordinated Deed of Trust, Borrower shall have the right to have any
proceedings begun by Lender to enforce covenants of this Subordinated Deed of Trust relating to
sums due and payable by Borrower discontinued at any time prior to five days before the
Property is scheduled for sale pursuant to the power of sale contained in this Subordinated Deed
of Trust or at any time prior to entry of a judgment enforcing this Subordinated Deed of Trust if:
a) Borrower pays Lender all sums which would be then due under this Subordinated Deed of
Trust, the Note and notes securing Future Advances, if any, had no acceleration occmTed; (b)
Borrower pays all reasonable expenses incurred by Lender and Trustee in enforcing the
covenants and agreements of Borrower contained in this Subordinated Deed of Trust and in
enforcing Lender's and Trustee's remedies as provided in Section 16 hereof, including, but not
limited to reasonable attorneys' fees; (c) Borrower takes such actions as Lender may reasonably
require to assure that the lien of this Subordinated Deed of Trust, Lender's interest in the
Property, and Borrower's obligation to pay the sums secured by this Subordinated Deed of Trust
shall continue unimpaired. Upon such payment and cure by Borrower, this Subordinated Deed
of Trust and the obligations secured hereby shall remain in full force and effect as if no
acceleration had occurred.
ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION. As additional security hereunder, subject to the rights of senior lien holders,
Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior
to acceleration under Section 15 hereof, have the right to collect such rents as they become due.
Upon acceleration under Section 15 hereof or abandonment of the Property, Lender, in person,
by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of,
rent and manage the Property and to collect the rents of the Property. All rents collected by the
Lender or by a judicially appointed receiver shall be applied first to payment of the cost of
management of the Property and collection of rents, including, but not limited to, receiver's fees,
premiums on receiver's bonds and reasonable attorneys' fees, and then to the sums secured by
this Subordinated Deed of Trust. Lender and the receiver shall be liable to account for those
rents actually received and expenditures actually incurred.
RECONVEY ANCE. Upon payment of all sums evidenced by the Note and secured by
this Subordinated Deed of Trust, Trustee shall reconvey the Property without warranty and
without charge to the person or persons legally entitled thereto. Such person or persons shall pay
all costs ofrecordation, if any.
SUBSTITUTE TRUSTEE. Lender, at Lender's option, may from time to time remove
Trustee and appoint a successor trustee to act as Trustee under this Subordinated Deed of Trust.
Without conveyance of the Property, the successor trustee shall succeed to all the title, power
and duties conferred upon the Trustee in this Subordinated Deed of Trust and by applicable law.
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REQUEST FOR NOTICES. Borrower requests that copies of the notice of default and
notice of sale be sent to the Borrower's address.
ST A TEMENT OF OBLIGATION. The Lender may collect a fee not to exceed $15 .00
for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of the
State of California.
SUBORDINATION ACKNOWLEDGMENT. Beneficiary hereby acknowledges that the
loan secured by this Subordinated Deed of Trust is also subordinate to the extended use
agreement required to be executed by Borrower pursuant to Section 42(h)(6)(B) of the Internal
Revenue Code, for purposes of the low-income housing tax credits to be allocated to Borrower.
In addition, Beneficiary hereby acknowledges that the loan secured by this Subordinated Deed of
Trust is further subordinate to Section 42(h)(6)(e)(ii) of the Internal Revenue Code, which
prohibits the eviction or termination of a tenancy, other than for good cause, of an existing tenant
of any low-income housing tax credit unit or any increase in the gross rent with respect to such
unit, not otherwise permitted under Section 42, for a period of three (3) years after the date the
Property is acquired by Lender through foreclosure or instrument in lieu of foreclosure.
FINANCING STATEMENT. This Deed of Trust shall constitute a financing statement
pursuant to California UCC §9-502, and shall be filed as a fixture filing in the Official Records
of the County in which the Property is located and covers goods which are or are to become
fixtures on the Property.
SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS THEREOF, Borrower has executed this Subordinated Deed of Trust on the day
and year first above written.
BORROWER:
By: Johnson & Johnson Investments, LLC, a California limited liability company
Its Co-Administrative General Partner
By:-----------
Daniel J. Johnson, Member
By: Community Revitalization and Development Corporation
Its Managing General Partner
By: __________ _
David Rutledge, President
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A Notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STA TE OF CALIFORNIA
COUNTY OF --------
SS.
On ___________ , before me, _____________ , a
Notary Public in and for said State, personally appeared, ________ _
who proved to me the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity(ies)
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT
NO.20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-
04 IN THE CITY OF MOO RP ARK, COUNTY OF VENTURA, STATE OF
CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764
OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI,
AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS
MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF
LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS
SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE
RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY
AND ST A TE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID
MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL IA OF IN THAT CERTAIN LOT
LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF
VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT
NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T",
TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF
MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY
RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL IA OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM
THE SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05
FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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384
3RD THENCE, SOUTH 89° 03'54" WEST 293.78 FEET TO A POINT IN THE WEST
LINE OF SAID PARCEL lA.
EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON
THE SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL
RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT,
IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL
RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE
TOT AL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT
HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID
LAND WITHIN 500 FEET OF THE PRESENT SURF ACE MEASURED
VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E.
SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL
RECORDS.
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EXHIBIT F
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
Design Phase: Complete on or before December 31, 2021
Initial Tax-Exempt Bond and Tax Credit Applications: September 9, 2021
Tax-Exempt Bond and Tax Credit Allocations (if initial application is successful):
December 8, 2021
Plan Check/ Building Permits: June 2022
Date property must be acquired by Affordable Housing Owner: October 29, 2022
Evidence to City of all debt/equity funds for all Project costs (with comprehensive
Project budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond
Financing: Within 180 days of receipt of Bond and Tax Credit Allocations
Grading: To commence within 30 days after acquisition of property by Affordable
Housing Owner or affiliate
Construction: 24 months from commencement of grading
Lease-Up: approximately 3 months following construction completion.
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NEW EXHIBIT J TO DEVELOPMENT AGREEMENT (POWER LINES)
UNDER SEPARATE ATTACHMENT)
Replaces Exhibit D and Exhibit G to the Development Agreement (recorded on
April 17, 2017 by Instrument No. 20170417- 00050720-0)
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387
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388
Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
lllllll lllllll llllllll llll 1111111111111 1111 111 20170417-00050721-0 1/67
Ventura County Clerk and Recorder
MARK A. LUNN
04/17/2017 02:20:54 PM
1189866 $.00 VA
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, LP.
Dated as of April 17, 2017
ATTACHMENT 4
389
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be
effective as of April 17, 2017, regardless of the date of actual execution hereof, and is
by and between the CITY OF MOORPARK, a municipal corporation ("City"), ESSEX
MOORPARK OWNER, L.P., a California limited partnership ("Owner").
RECITALS
A. The City and Owner have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 2x110`11'1-0005012O-oin the Official Records of
the County of Ventura on April 17, 2017, (the "Development Agreement") pursuant to
which Owner will construct a residential development consisting of 200 apartments on
approximately 10.57 acres (the "Property"), described more specifically on Exhibit No. 1
attached hereto and incorporated herein by reference, which is located within the City of
Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPD"), and Zone Change No. 2004-04
ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively referred to as the
Project Approvals".
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No.2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that Owner and Affordable Housing
Owner maintain each and every one of the Affordable Units at all times in the same
manner as the market rate units, including, but not limited to the quality and
maintenance of flooring, window coverings, appliances, heating and air conditioning
systems, storage space and type, and the number and location of required parking
spaces.
E. The Development Agreement requires that this Affordable Housing
Agreement be executed by Owner and delivered to City for recording, and that this
Affordable Housing Agreement not be subordinate to any liens (except for property
taxes and assessments not yet due).
F. As permitted by the Development Agreement, Owner may apply for
approval of an air rights subdivision such that the Affordable Units may be conveyed to
and separately owned by a single entity affiliated with Owner (as described in the
Development Agreement) and used solely as affordable rental units in accordance with
this Agreement. Such affiliated entity is referred to herein as the "Affordable Housing
Owner".
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NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
Affordable Housing In Lieu Fee" shall mean the annual fee paid to the City in
exchange for the Owner and Affordable Housing Owner not being obligated to provide
four (4) additional Affordable Low Income Units in addition to the 50 Affordable Units
required by this Agreement.
Affordable Housing Owner" shall mean the single entity to which the sixteen (16)
Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax
exempt bond financing and low income housing tax credits are used with respect to the
Project described in Section 2.1 below; however, until Owner conveys such Affordable
Units to Affordable Housing Owner, and if Owner never conveys the Affordable Units to
Affordable Housing Owner, and to the extent of its ownership of the ten (10) Units
described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing
Owner" as well as the "Owner".
Affordable Rent" shall mean the rent described in Section 2.9, subject to
Section 2.10.
Affordable Units" shall mean the rent-restricted dwelling units for Low Income
Households, Very Low Income Households and Moderate Income Households
described in this Affordable Housing Agreement.
Agreement" shall mean this Affordable Housing Agreement.
City" shall mean the City of Moorpark, California, a municipal corporation.
County" shall mean Ventura County.
County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housing and Community
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by HCD
or if HCD discontinues such publication, then such reasonable replacement publication
as may be selected by City in good faith).
Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals, which requires the
Developer to construct the Project, and also requires that at least twenty percent (20%)
i.e., 40 units) of the total dwelling units in the Project be rented at an Affordable Rent to
Very Low Income households (i.e., 50% of County Median income) and Low Income
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391
households (Le., 80% of County Median Income) and an additional five percent (5%)
Le. 10 Units) of the total dwelling units in the Project be rented at an Affordable Rent to
Moderate Income households (Le. 120% of County Median income).
Development Agreement" shall mean that certain Development Agreement
dated April 17; 2017, recorded substantially concurrently herewith in the Official
Records of the County of Ventura.
HCD" shall mean the Department of Housing and Community Development
HCD) of the State of California.
Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined
below).
Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit. The household income amount for Lower Income households
shall be based on the amount most recently published by HCD as the Household
Income Limits for Ventura County ("HCD Income Limits") or such successor information
in the event the referenced published information is no longer available.
Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
Low Income Units" means Units rented to Low Income Households.
Moderate Income" shall mean a household income that does not exceed one
hundred twenty percent (120%) of the County Median Income, adjusted for household
size appropriate to the Unit. The household income amount for Moderate Income
households for any year shall be based on the amount most recently published by HCD
as the Household Income Limits for Ventura County ("HCD Income Limits") or such
successor information in the event the referenced published information is no longer
available.
Moderate Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Moderate Income, adjusted for
household size.
Moderate Income Units" means Units rented to Moderate Income Households.
Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
392
Project" is the residential development described in RPD 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner or Affordable
Housing Owner and located on or used in connection with all such improvements and
all functionally related and subordinate facilities, and all improvements required by the
Project Approvals.
Project Approvals" is defined in Recital B above.
Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
Stabilization" shall mean the time at which the Project achieves ninety percent
90%) occupancy for ninety (90) consecutive days.
Term" shall mean from the date of recordation of this Agreement until the later
of: (i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no
residential occupancy; or(ii) fifty-five (55) years after the recordation of this Agreement.
Units" shall mean residential dwelling units.
Utility Allowance" shall mean the utility allowance set forth in the chart attached
to this Agreement as Exhibit No. 2 and referred to in Section 2.9.
Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit. The household income amount for Very Low Income households shall be
based on the amount most recently published by HCD as the Household Income Limits
for Ventura County ("HCD Income Limits") or such successor information in the event
the referenced published information is no longer available.
Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
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1.2. 3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose
affordability restrictions and household income restrictions on the
Affordable Units in the Project, specifically there shall be sixteen
16) Very Low Income Units, twenty-four (24) Low Income Units,
and ten (10) Moderate Income Units, all as more particularly set
forth on Exhibit No. 2.
B. However, Owner may obtain Federal low income housing tax
credits and tax-exempt bonds (collectively, "Affordable Housing
Financing") to finance the Project, which will require that forty (40)
of the Affordable Units be restricted for rent to Very Low Income
Households during the periods set forth in the Internal Revenue
Code, as the same may be modified by law applicable to the low
income housing tax credits (the "Compliance Period and Extend
Use Period") and applicable to the tax exempt bonds (the "Qualified
Project Period"). At the end of whichever is the last to expire of the
Compliance Period and Extended Use Period and the Qualified
Project Period, Owner shall rent the ten (10) Moderate Income
Units to Low Income Households consistent with the requirements
of this Agreement. Upon the the last to expire of the Compliance
Period and Extended Use Period and the Qualified Project Period,
the provisions of this Agreement shall be applicable and the
number of Very Low Income Units, Low Income Units, and
Moderate Income Units shall be consistent with Section 2.1.A.
above and Exhibit No. 2.
At the time the Project is no longer required to comply with
Affordable Housing Financing, the City, Owner and Affordable
Housing Owner shall in good faith, and consistent with applicable
law and this Agreement, prepare a plan to transition the Affordable
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Units so that the number of Very Low Income Units, Low Income
Units, and Moderate Income Units in the Project is as required by
Section 2.1A above and Exhibit No. 2 and that there are Very Low
Income Households, Low Income Households, and Moderate
Income Households occupying the Affordable Units consistent with
Section 2.1.A. above and Exhibit No. 2 in the shortest possible
time.
2. 2 Agreement to be Recorded; Priority. Owner and Affordable Housing
Owner represent, warrant, and covenant that they will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California, and that
this Agreement shall be senior in priority to any lien, encumbrance or other matter of
record except as expressly approved in writing by City. The Owner or Affordable
Housing Owner shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to
develop and operate the Project and Property as a multifamily residential rental property
and uses incidental thereto and for no other purposes. Owner and Affordable Housing
Owner agree that the Affordable Units shall have the same or better amenities (in type,
quality and number) as the market-rate units in the Project (as determined by the
Community Development Director) and shall be located as described on the site plan
attached to Exhibit No. 2. Such amenities for the Affordable Units shall include, without
limitation, air conditioning/heating, plumbing and electrical fixtures, garbage disposal,
flooring, cabinets, counter tops, trim, built-in dishwasher, clothes washer and dryer,
sinks, bathtub, solar or solar stub out, water heater, built-in oven, microwave, stove,
bathroom fan (the most quiet model), garage door openers, doors and door hardware,
and floor and window coverings (all to the same extent provided for the market rate
units). Owner and Affordable Housing Owner shall promptly notify City in writing upon
any relocation of an Affordable Unit under this Agreement (meaning change in the
designated/intended household income level, not an actual change in the fixed locations
of the Affordable Units, which constitute a separate subdivided parcel, and are fixed as
shown at the end of Exhibit No. 2), and each such notice shall include the basis for such
relocation and the location of such relocated Affordable Unit(s); however, the ten (10)
Moderate Income Units to be owned by the Owner of the market-rate Units shall be
randomly dispersed among its Units in the portion of the Project owned by the Owner
consistent with Exhibit No. 2. Owner and Affordable Housing Owner further agree not
to convert the Project or any part thereof to any type of common interest development,
for-sale condominiums, community apartments, planned development, stock
cooperative, hotel, motel, or any type of congregate care or assisted living facility (but
the foregoing shall not prohibit the air rights subdivision and conveyance described in
Recital F above). Owner and Affordable Housing Owner agree that they shall not
knowingly permit any of the Units in the Project to be used on a transient basis and shall
not rent any Unit for a period of less than thirty (30) days. At no time shall any of the
Affordable Units be rented to an employee, agent, officer, contractor of any owner of
any portion of the Property or Project or of any company affiliated with any such owner,
or to any such affiliated company.
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2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and Affordable Housing Owner and approved by City which
approval shall not be unreasonably withheld, conditioned, or delayed ("Rules"). Owner
and Affordable Housing Owner shall submit such Rules to City during the Initial Rent-Up
for the City's approval, which will not be withheld, conditioned or delayed. Annually,
Owner and Affordable Housing Owner shall submit any amendments, modifications or
changes to such Rules to the City at least forty-five (45) days prior to their proposed
effective date and all of such amendments, modifications and changes shall be subject
to the City's prior written consent, which will not be withheld, conditioned or delayed. If
City does not consent, City shall specify the reasons in writing so that Affordable
Housing Owner can revise the amendment(s), modification(s) or change(s) and re-
submit them for City approval, which will not be withheld, conditioned or delayed. In
addition, Owner and Affordable Housing Owner shall submit to the City on an annual
basis a certification that the Rules previously submitted to City, as amended, remain in
effect (with a copy of the Rules and any amendments). If applicable, this Agreement
shall be consistent with any Extended Use Agreement entered into between Owner or
any affiliate of Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. Except for the ten (10) Moderate Income Units (which will
be Low Income Units until the last to end of the Compliance Period and Extended Use
Period and the Qualified Project Period, as set forth in Section 2.1.B. above, and will be
owned by the owner of the market-rate Units), all of the Affordable Units shall be and
remain owned by the Affordable Housing Owner (an affiliate of the Owner of the market-
rate Units). Such ten (10) Units (Moderate, or Low Income until the last to end of the
Compliance Period and Extended Use Period or the Qualified Project Period) may be
owned by Owner but shall be subject to this Agreement. No Affordable Unit may be
sold separately.
2.7 Affordable Units Generally.
2.7.1 Allocation/Dispersal of Affordable Units. As set forth on Exhibit No.
2, the Affordable Units shall be randomly dispersed throughout the Project, and as
described in Section 2.3 above, Owner and Affordable Housing Owner shall promptly
notify City in writing of any change in the designated income level of any Affordable
Unit.
2.7. 2 Accessible Compliant Units. Four (4) of the nineteen (19) one-
bedroom one-bath affordable Low and Very Low Income units shall be compliant with all
laws regarding disabled persons (including, without limitation, the Americans with
Disabilities Act) and shall be reserved for and occupied by persons eligible for such
accommodations, to the extent there is a qualified accessible Low or Very Low Income
person ready to occupy such unit. Owner and Affordable Housing Owner shall maintain
a waiting list for the affordable accessible-compliant units, shall promptly deliver a copy
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396
thereof to City and shall thereafter deliver a copy of the revised list to City whenever the
list changes. Should there be a qualified Low or Very Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner and Affordable Housing
Owner shall add such prospective tenant to the waiting list for the affordable accessible-
compliant units. At the earliest possible time a Low or Very Low Income non-accessible
compliant affordable unit becomes available, the non-accessible Low or Very Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy
the accessible compliant unit. Owner and Affordable Housing Owner shall include a
provision in the non-accessible compliant affordable lease for any accessible-compliant
affordable unit that the non-accessible Low or Very Low Income tenant agrees to be
relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible
compliant unit becomes available. While any of the four (4) affordable accessible-
compliant units are not being leased to disabled persons (due to unavailability of such
persons to lease), the applicable Affordable Unit shall be leased in accordance with this
Agreement.
At all times, Affordable Housing Owner shall keep City informed in writing of the
income level applicable to each accessible compliant unit. The fixed locations of the
Affordable Units shall be as shown on the site plan attached to Exhibit No. 2.
The accessible compliant units shall be consistent with accessibility design
criteria established by the State of California, and Owner and Affordable Housing Owner
shall promptly make any changes to such units required by new laws or changes in
laws. Reasonable accommodation shall be made, as may be requested by specific Low
or Very Low Income disabled tenants in such units, to provide features such as smoke
alarms with flashing lights, for instance, if requested by hearing impaired Low or Very
Low Income tenants in an accessible compliant unit.
2. 7.3 Affordable Housing In Lieu Fee.
2.7.3.1 In addition to the Affordable Units herein described,
Owner and Affordable Housing Owner shall pay (and be jointly and severally liable for)
a single annual in lieu fee for having irrevocably elected not to provide four (4)
additional Low Income units (the "Affordable Housing In Lieu Fee"). The modification of
affordability levels for Affordable Housing Financing purposes (as described in Section
2.1, 2.12 and Exhibit No. 2), shall not affect the foregoing.
2.7.3.2 The Affordable Housing In Lieu fee shall initially be
Forty Seven Thousand Five Hundred and No/100 Dollars ($47,500.00) if paid on or
before January 1, 2019. If the initial payment is not paid by January 1, 2019, it shall
increase by two percent (2%) each year above the prior year amount. Similarly, all
subsequent annual payments shall increase by two percent (2%) of the previous year's
payment.
Payments shall be made on March 10 of the first calendar year in which one or
more residential unit in the Project has theretofore been occupied, and on or before
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March 10 of each subsequent calendar year. If March 10 falls on a Saturday, Sunday,
or City Holiday, then payment shall be due on the City's next business day. A late
payment charge (constituting liquidated damages) equal to ten percent (10%) of the
payment due shall be added to payments received three (3) days or more after the due
date as stated herein or when a deficient check has been given for payment, and the
parties hereby stipulate and agree that it would be very difficult and impractical to
determine the damages suffered by City, as a public entity, due to late payments.
Payments received more than ten (10) days after the due date shall, in addition to the
ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the
due date through and including the date the payment is received by the City.
In the event of a sale, transfer, assignment of any type or any portion of the
Project or Property by Owner or Affordable Housing Owner to any other entity not
owned in whole or in part by Owner, the fee amount referenced above shall be
increased based on the new value of the Property as if it had been reassessed by the
Ventura County Assessor and not exempt from the payment of new property taxes. The
calculation shall provide the City 0.095% (equivalent to $950.00 per $1 million of
assessed value) of the assessed value or such higher percentage of the total new
property taxes if the City portion has been increased by action of the State of California
or by a statewide initiative or referendum. (For example, if the sale results in a value of
50,000,000.00 then the annual fee to the City would be $50,000, 000.00 X .00095 =
47,500.00, or if the City portion of the property taxes has been increased by the State
of California on a statewide initiative or referendum then the amount would increase). In
the event the payment to the City under this calculation would be less than the Initial
Affordable Housing In-lieu Fee Amount, inclusive of any 2% adjustments applied as of
the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount
shall continue until such time as the calculation in this paragraph would yield a higher
annual fee.
2.7.4 Preference Policies. To the extent permitted by applicable state
and federal law, priority shall be granted to eligible City of Moorpark residents. A
waiting list for the Affordable Units shall be maintained from which vacancies shall be
filled. The waiting list shall be established through a fair process for the selection of the
next eligible households to fill the vacancies allowing for priority for City of Moorpark
residents to the extent permitted by applicable state and federal law. Details of this
process shall be submitted in writing to the City for review and approval prior to the
issuance of the first building permit for this project. Additionally, Affordable Housing
Owner shall submit to City an annual report, no later than January 30 of each calendar
year for the pervious calendar year, describing the vacancies filled from households on
the list, total vacancies filled and the number of households on the list.
2. 7.5 Occupancy Reporting. As specified in Section 2.12, Owner and
Affordable Housing Owner will advise City on a quarterly basis in writing of the number
of Affordable Units occupied by Very Low, Low and Moderate Income Tenants by
delivery of a certificate in the form specified by the City, which is attached hereto as
Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City
of Moorpark resident who on the waiting list and was given priority. Any reporting
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398
schedule less frequent than quarterly must be expressly approved in writing by the City
Manager.
2.7.6 Unit Classification. An Affordable Unit occupied by a Very Low
Income Tenant, a Low Income Tenant, or a Moderate Income Tenant shall be deemed,
upon termination of occupancy by such tenant (whether voluntarily or involuntarily), to
be continuously occupied by a Very Low Income Tenant, a Low Income Tenant, or a
Moderate Income Tenant, as applicable, until re-occupied other than for a temporary
period (not to exceed 60 days), at which time the classification of the Unit shall be
redetermined (provided that upon such reclassification, Affordable Housing Owner must
remain in compliance with this Agreement). Owner and Affordable Housing Owner shall
use commercially reasonable efforts to prevent such temporary periods from exceeding
sixty (60) days. Owner and Affordable Housing Owner will also obtain and maintain on
file such Certifications of Tenant Eligibility in the form of Exhibit No. 3 attached hereto,
for each Very Low, Low and Moderate Income Tenant. Owner and Affordable Housing
Owner shall make a good faith effort to verify that the income declared by an applicant
in an income certification is accurate by reviewing any one or more of the following
documents, which shall be provided by the applicant:
a) A pay stub for the most recent pay period;
b) An income tax return for the most recent tax year;
c) An income verification form from the applicant's current employer;
d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
e) If the applicant is unemployed and has no tax return, another form
of independent verification is needed.
In addition to the above-referenced income certification, eligible Very Low and
Low Income applicants for the ADA compliant units shall submit a letter from a
physician or other document acceptable to the City, Owner and Affordable Housing
Owner which confirms the accessibility needs of the applicant.
2.7.7 Lease Provisions. The Owner and the Affordable Housing Owner
shall include provisions in all signed leases or rental agreements for all Affordable Units
which authorize the Owner or Affordable Housing Owner, as applicable, to immediately
terminate the tenancy of any tenant occupying an Affordable Unit where one or more of
such tenants have misrepresented any fact material to the qualification of such an
individual or household as a Very Low, Low or Moderate Income Tenant and/or for
qualification for occupancy of an Affordable Unit, and Affordable Housing Owner and
Owner shall reasonably enforce such termination rights (i.e., Affordable Housing Owner
or Owner, as applicable, shall exercise them and not waive them). Each lease or rental
agreement for an Affordable Unit shall also provide that the tenants of such Affordable
Unit shall be subject to annual certification or recertification of income, as required by
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the City, and shall be subject to rental increases in accordance with Section 2.10 of this
Agreement.
2.7.8 Management Diligence. Owner and Affordable Housing Owner
shall use commercially reasonable efforts not to allow any rent-ready Affordable Unit to
remain vacant.
2.7.9 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner and
Affordable Housing Owner in writing of the name and phone number of such staff
person and any replacements. On or before the first day of February of each year
during the Term of this Agreement, commencing after the first residential occupancy of
the Project, Affordable Housing Owner and Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by
the larger of(a) or(b) below:
a) The percentage increase in the Consumer Price Index
during the prior year, which shall be determined by using the Consumer Price Index by
the U. S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all
items, for the Los Angeles/Riverside/Orange County metropolitan area. The calculation
shall be made by copying such CPI for the month of October to the CPI for the previous
October.
b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly
effective yield amounts paid by LAIF for the City's Pooled Money Investment Account
for the most recent four(4) calendar quarters divided by four(4).
In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result.
2.7.10 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner or
the Affordable Housing Owner for the lease or rental of the Affordable Units shall be
subject to review and approval by the City, the approval of which shall not be
unreasonably withheld, conditioned, or delayed. If the lease or rental agreement
provisions specified in this Section are not approved or disapproved within thirty (30)
days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 For initial rent-up only, for each ten (10) units rented in the Project
i.e., both Affordable Units and other units), at least two (2) must be Affordable Units
which comply with this Agreement.
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2.8.2 During the Initial Rent-Up, the Very Low Income Units occupied by
Very Low Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed sixteen (16) units (subject to Section 2.1 above).
2.8.3 During the Initial Rent-Up, the Low Income Units occupied by Low
Income households, plus those Units held available for occupancy by such tenants,
shall be equal to or exceed twenty-four (24) units (subject to Section 2.1 above).
2.8.4 During the Initial Rent-Up, the Moderate Income Units occupied by
Moderate Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed ten (10) units (subject to Section 2.1 above).
2.8.5 In connection with the Initial Lease-Up of the Project, Owner and
Affordable Housing Owner will adopt outreach programs to locate qualified tenants for
the Project and shall establish such procedures for occupancy, rental, and rent
grievances as may be reasonably required by the City. Not later than ten (10) days prior
to the commencement of marketing, Owner and Affordable Housing Owner shall
prepare and submit to the City for reasonable approval a marketing and outreach
program which shall contain, among other things, the following: how a potential tenant
would apply to rent a Unit in the Project, including where to apply, applicable income
limits and rent levels; support documentation needed such as pay stubs, tax returns, or
confirmation of disability, if applicable, a description of procedures Owner and
Affordable Housing Owner will follow to publicize vacancies in the Project, including
notice in newspapers of general circulation, including at least one Spanish-language
newspaper and mailing notices of vacancies to or contacting by telephone potential
tenants on the waiting list maintained by Owner and Affordable Housing Owner.
Notices shall also be given to organizations in Ventura County which provide referrals or
other services to persons with disabilities.
2.8.6 In the event that any Affordable Unit is rendered unfit for occupancy
including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner or Affordable Housing Owner, as applicable, shall pay the City a
single fee of $10 (which shall increase by $2 every five (5) years) per day until the
Affordable Unit is placed back in service except that such fee shall not be payable for so
long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build
the Affordable Unit in question, as shown by reasonable evidence provided to City.
2. 9 Affordable Rent.
2. 9.1 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of
the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons
for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Low Income Tenants shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance. "Family size appropriate
to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California
Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2
bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Moderate Income Tenants shall be no
greater than thirty percent (30%) of one hundred and ten (110%) of County Median
Income, adjusted for family size appropriate for the Unit, Less the Utility Allowance.
Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section
50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom
unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667)
based on Apartment/Walk Up unit type as posted and updated annually by the Area
Housing Authority of the County of Ventura based on the following appliances/utilities to
be provided to the units:
Natural Gas— Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or
future prudent refinancing of this project, utilizes definitions, sources of information, etc.,
other than those which have been herein defined and utilized in calculating Affordable
Rent, then the procedure or input which produces the lowest affordable rent, will prevail.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner and Affordable Housing Owner shall cause the income of
each Tenant of an Affordable Unit to be re-certified on an annual basis on the
anniversary date of each such tenant's initial rental date. This recertification shall be
submitted in writing to the City within thirty (30) days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by a Very Low, Low
or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent
calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
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2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Very Low Income Units and the Low Income Units rented to Very Low
Income Households, and at all times for the ten (10) Moderate Income Units regardless
of whether they are rented to Moderate Income Households or rented to Low Income
Households, the following shall apply:
2.12.1 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low
Income Tenant has increased above the maximum allowable household income level of
a Very Low Income Tenant, but remains equal to or below that of a Low Income
household, then, except as provided below in this Section 2.12, the Owner or Affordable
Housing Owner, or both, as applicable, shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of sixty percent (60%) of the County Median Income for the size
household appropriate to the unit (less the utility allowance), upon sixty (60) days
written notice to the occupants thereof. In that event, the next available unit that was
previously a Low Income Unit must be rented to (or held vacant and available for
immediate occupancy by) a Very Low Income household.
2.12.2 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low or
Low Income Tenant has increased above the maximum allowable household income of
a Low Income Tenant, to not more than Moderate Income, which is one hundred and
twenty percent (120%) of median income, then the Owner or Affordable Housing
Owner, or both, as applicable, shall not be required to evict the Tenant and the monthly
rent charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent
30%) of one hundred ten percent (110%) of the County Median Income for the size
household appropriate to the unit, less the utility allowance. In this event, the next
available unit that was previously a Moderate Income unit must be rented to or held
vacant and available for immediate occupancy by a Very Low or Low Income
household, as the case may be, at an affordable rent (1/12 of 30% of 50% of Median
Income, in the case of a Very Low Income unit, or 1/12 of 30% of 60% of Median
Income, in the case of a Low Income unit, both of which are net of the utility allowance).
2.12.3 If, upon income re-certification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the income of a tenant occupying one of
the Affordable Units has increased and now exceeds that of a Moderate Income
household, the Tenant is no longer eligible to rent the unit, and the Owner or Affordable
Housing Owner, or both, as applicable, shall not increase the rent but shall provide
written notice to the Tenant to vacate the unit within six (6) months. If an appropriate
unit is available to substitute for said unit, and the "substitute unit" has not been one of
the Affordable Units, provided that said substitute unit is of the same configuration and
size as the unit currently occupied by the now ineligible Tenant, the Affordable Housing
Owner may request authorization from the City Manager or his/her designee to
substitute the like unit for the Affordable Unit, and cause the rent on the substitute unit
to be at the same level of affordability as the unit that was occupied by the formerly
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eligible Tenant, and the City Manager shall use good faith efforts to respond within thirty
30) days.
Notwithstanding the foregoing, any such Tenant shall have the right to request a
recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction
of income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period, the foregoing provisions shall not apply to the units rented to
Very Low Income Households, but shall continue to apply to the ten (10) Moderate Units
that are to be rented to Low Income Tenants during such period (and owned by the
entity which also owns the market rate Units). Until the last to end of the Compliance
Period and Extended Use Period or the Qualified Project Period, Owner and Affordable
Housing Owner shall comply with laws and regulations, and any separate/additional
recorded restrictions or "Regulatory Agreement" required by the Affordable Housing
Financing.
Owner and Affordable Housing Owner shall promptly deliver to City copies of all
Affordable Housing Financing regulatory agreements or similar agreements restricting
Units in the Project, and shall notify City and all affected tenants in writing of the
expiration of the Bond Period at least one (1) calendar year (but not more than fourteen
14) months) prior to expiration of the Compliance Period and Extended Use Period or
Qualified Project Period, whichever expires later, of any effect on the affordability level
of their Affordable Units.
Additionally, Owner and Affordable Housing Owner shall notify City in writing of
any re-syndication or extension of tax credit financing and any defeasance or
refinancing of bond financing as soon as they become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner and Affordable Housing Owner hereby agree that specific
enforcement of Owner's and Affordable Housing Owner's agreements to comply with
the allowable rent and occupancy restrictions of this Agreement is one of the reasons
for the City's issuing the Project Approvals and entering into the Development
Agreement.
2.13.2 Owner and Affordable Housing Owner further agree that, in the
event of any breach of such requirements, potential monetary damages to City, as well
as prospective Very Low, Low and Moderate Income Tenants, would be difficult, if not
impossible, to evaluate and quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner and Affordable
Housing Owner agree to the imposition of the remedy of specific performance against it
in the case of any event of default by Affordable Housing Owner in complying with the
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allowable rent, occupancy restrictions or any other provision of this Agreement. Nothing
herein shall impair City's rights to liquidated damages under Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner and Affordable Housing Owner shall prepare
and submit to the City, on a quarterly basis, written reports, setting forth the rental
activity for the previous month, and the current total number of Affordable Units
occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner and Affordable Housing
Owner shall prepare and submit to the City, on a quarterly basis, not later than the 15th
day of each calendar quarter, a Certificate of Continuing Program Compliance in a form
substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and
percentage of Affordable Units in the Project which were occupied by Very Low, Low
and Moderate Income Tenants, or held vacant and available for occupancy by such
Tenants during said period; and (b) that to the knowledge of the Affordable Housing
Owner, no default has occurred under the provisions of this Agreement; and (c) such
other information as may be requested in writing by the City Manager.
2.15.3 Owner and Affordable Housing Owner shall prepare and submit to
the City, on an annual basis, a report in form and substance reasonably satisfactory to
the City, not later than March 31st of each year for the preceding calendar year,
summarizing the vacancy rate of the Affordable Units in the Project on a month-to-
month basis for such calendar year.
2.15.4 Owner and Affordable Housing Owner shall also deliver to City from
time to time any other information about the Affordable Units and the rental thereof as
may be reasonably requested in writing by City within ten (10) days after any such
written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3. 2 Management Agent.
3. 2.1 The Project shall at all times be managed by the Owner or the
Affordable Housing Owner or a single third-party management agent with demonstrated
ability to operate, and experience in operating, residential housing including restricted
affordable housing, in a manner that will provide decent, safe and sanitary residential
facilities to occupants thereof, including experience in complying with reporting
requirements and occupancy restrictions similar to those imposed upon the Project by
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the terms of this Agreement. (There may only be one manager for the entire Project at
any one time.)
3.2.2 The Owner or the Affordable Housing Owner, directly or through an
affiliate, may be the "manager" of the Project. The Owner and the Affordable Housing
Owner may retain on-site personnel and other consultants and service providers to
assist Owner and the Affordable Housing Owner to operate the Project effectively and in
compliance with the provisions of this Agreement and state and federal law.
3.2. 3 In the event that Owner or Affordable Housing Owner seeks to
appoint a replacement management entity to manage the Project, they shall advise the
City of the identity of any such qualified management agent not later than thirty (30)
days prior to the effective date of such appointment. The Owner and the Affordable
Housing Owner shall also submit such additional information about the background,
experience and financial condition of any proposed management agent as is reasonably
requested by the City.
3.2.4 Upon the City's written request, the Owner and the Affordable
Housing Owner shall cooperate with the City in an annual review of the management
practices and status of Project. The purpose of each annual review will be to enable the
City to determine if the Project is being operated and managed in accordance with the
requirements and standards of this Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner, the Affordable Housing Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to
the management agent.
3.3.2 There will be regular meetings as necessary between the Owner,
the Affordable Housing Owner and the management agent for the purpose of reviewing
policies, procedures, resident relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number
and email address of the management agent (so that City may contact the management
agent directly), and shall cause the management agent or its personnel to be available
on a twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner and Affordable Housing Owner shall
provide for adequate on-site staffing of management personnel to manage the Project in
a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner
shall provide such security services as may be necessary or appropriate for the Project.
All hiring of on-site personnel shall conform to applicable equal opportunity guidelines,
without regard to race, religion, color, national origin or sex. All hiring materials will
indicate that the Project is an "Equal Opportunity Employer." Employment grievances,
terminations and promotions will be conducted according to personnel policies and
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procedures which conform with equal opportunity laws. All personnel employed at the
Project will receive training specific to Owner's policies and procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner and Affordable Housing Owner hereby waive any rights they
might otherwise have to seek judicial review of such City actions to change the
development standards, General Plan designation and zoning to those development
standards and density of permitted development to that in existence prior to the
approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change
No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner and Affordable Housing Owner shall pay to City a single
community services fee of Eight Thousand Dollars ($8,000.00) increased by two
percent (2%) on each anniversary of the Operative Date (as defined in Section 18 of the
Development Agreement).
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner and Affordable Housing Owner
shall maintain and preserve the Project and the Property in good condition and repair
and in a prudent and businesslike manner. If any portion of the Project is damaged,
restoration of the damaged improvements shall be made by Owner and Affordable
Housing Owner to a condition as good as existed prior to the damage. Owner and
Affordable Housing Owner shall complete promptly and in a good and workmanlike
manner any improvements which may now or hereafter be constructed as part of the
Project and pay when due all claims for labor performed and material furnished therefor.
Owner and Affordable Housing Owner shall comply with all laws, ordinances, rules,
regulations, covenants, conditions, restrictions, and orders of any governmental
authority now or hereafter affecting the conduct or operation of the Project and of their
businesses on the Project or any part thereof or requiring any alteration or improvement
to be made thereon. Owner and Affordable Housing Owner shall maintain grounds,
sidewalks, roads, parking, and landscaped areas in the Project (and on any adjacent
areas owned by either of them) in good and neat order and repair. Owner and
Affordable Housing Owner hereby agrees that City may conduct from time to time
through representatives of its own choice who are properly identified as agents of the
City, upon reasonable written notice and subject to reasonable security and safety
procedures and rights of tenants in possession, on-site inspections and observation of
such records of Owner and Affordable Housing Owner relating to the Project and the
Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. Owner and the Affordable
Housing Owner shall assure that each Affordable Unit receives the same level of
maintenance and repair and upgrades or improvements as all other units in the Project.
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The Owner and the Affordable Housing Owner shall conduct an ongoing maintenance
program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c.Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment
as well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and
cleaned regularly and kept free of trash and other debris. Garbage removal will be
provided through arrangements with a contractor, consistent with applicable City
ordinances. The trash areas will be swept regularly and scrubbed with disinfectant
when necessary. Extermination services will be contracted with to provide pest control
consistent with high quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f.Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical
inspection, or as occupancy changes, or as the Owner and Affordable Housing Owner
or their management agent may otherwise deem necessary.
g. Owner and Affordable Housing Owner will employ a maintenance
work order procedure in the Project to adequately document requests for work and
promptness within which the work has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect
for the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
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6.1. 1 Failure by the Owner or Affordable Housing Owner to duly perform,
comply with and observe the conditions of Project approval, conditions, terms, or
covenants of the Development Agreement or this Agreement, if such failure remains
uncured thirty (30) days after written notice of such failure from the City in the manner
provided herein or, with respect to a default that cannot be cured within thirty (30) days,
if the Owner or Affordable Housing Owner fails to commence such cure within such
thirty (30) day period or thereafter fails to diligently and continuously proceed with such
cure to completion. In no event shall the City be precluded from exercising remedies if
an Event of Default is not cured within ninety (90) days after the first notice of default is
given or such longer period as may be agreed upon by both parties in writing. If a
different period or notice requirement is specified under any other section of this
Agreement, then the specific provision shall control.
6.1.2 Failure by Owner and the Affordable Housing Owner to cure any
default under Section 2.15 within fifteen (15) business days after written notice of such
default by City.
6.1.3 Any representation or warranty contained in this Agreement or in
any application, financial statement, certificate, or report submitted to the City by Owner
or Affordable Housing Owner proves to have been incorrect in any material respect
when made, if such failure remains uncured thirty (30) days after written notice of such
failure from City to Owner in the manner provided herein or, with respect to a default
that cannot be cured within thirty (30) days, if the Owner and the Affordable Housing
Owner fail to commence such cure within such thirty (30) day period or thereafter fail to
diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner or Affordable Housing Owner to be bankrupt or insolvent; (b)
approving as properly filed a petition seeking reorganization of Owner or Affordable
Housing Owner or seeking any arrangement on behalf of the Owner under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States
or of any state or other jurisdiction which is not dismissed within sixty (60) days after
filing; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors
of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of its
properties which (or who) is not discharged within sixty (60) days after its appointment;
or (d) directing the winding up or liquidation of the Owner or Affordable Housing Owner,
providing, however, that any such decree or order described in any of the foregoing
subsections shall have continued unstayed or undischarged for a period of ninety (90)
days.
6.1.5 The Owner or Affordable Housing Owner shall have assigned its
assets for the benefit of its creditors or suffered a sequestration or attachment or
execution on any substantial part of its property, unless the property so assigned,
sequestered, attached, or executed upon shall have been returned or released within
ninety (90) days after such event (unless a lesser time period is permitted for cure
hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If
the Owner or Affordable Housing Owner is diligently working to obtain a return or
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release of the property and the City's interest hereunder is not imminently threatened in
the City's reasonable business judgment, then the City shall not declare a default under
this subsection.
6.1.6 The Owner or Affordable Housing Owner shall have voluntarily
suspended its business for a period of thirty (30) consecutive days or dissolved and a
subsequent owner has not assumed the obligations of Owner or Affordable Housing
Owner(if applicable) in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6. 2.1 This Agreement shall be senior in priority to any lien or
encumbrance on the Property (other than the Development Agreement) and all liens
and encumbrances shall be subordinate and subject to this Agreement, regardless of
actual date of recordation. The City shall consider in good faith, reasonable
modifications of this Agreement typically required by secured lenders and commonly
known as "mortgagee protection" provisions; however, in no event shall any such
modification shorten the term of this Agreement or contain or require any subordination
of provisions of this Agreement.
6.2.2 Owner and Affordable Housing Owner shall pay and promptly
discharge when due, at their cost and expense, all liens, encumbrances and charges
upon their respective interests in the Project or the Property, or any part thereof or
interest therein (except the lien of any mortgage, deed of trust or other recorded
instrument securing any construction or permanent financing for the Project, which
shall, in any event, be junior and subordinate to this Agreement), provided that the
existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or
right thereto shall not constitute a violation of this Section if payment is not yet due
under the contract which is the foundation thereof and if such contract does not
postpone payment for more than forty-five (45) days after the performance thereof.
Owner and Affordable Housing Owner shall have the right to contest in good faith the
validity of any such lien, encumbrance or charge, provided that within ten (10) days after
service of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner
or Affordable Housing Owner shall deposit with City a bond or other security reasonably
satisfactory to City in such amounts as City shall reasonably require, but no more than
the amount required to release the lien under California law and provided further that
Owner or Affordable Housing Owner shall thereafter diligently proceed to cause such
lien, encumbrance or charge to be removed and discharged, and shall, in any event,
cause such lien, encumbrance or charge to be removed or discharged not later than
sixty (60) days prior to any foreclosure sale. If Owner or Affordable Housing Owner
shall fail either to remove and discharge any such lien, encumbrance or charge or to
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deposit security in accordance with the preceding sentence, if applicable, then, in
addition to any other right or remedy of City, City may, but shall not be obligated to,
discharge the same, without inquiring into the validity of such lien, encumbrance or
charge nor into the existence of any defense or offset thereto, either by paying the
amount claimed to be due, or by procuring the discharge of such lien, encumbrance or
charge by depositing in a court a bond or the amount or otherwise giving security for
such claim, in such manner as is or may be prescribed by law. Owner and Affordable
Housing Owner shall, immediately upon written demand thereof by City, pay to City an
amount equal to all costs and expenses incurred by City in connection with the exercise
by City of the foregoing right to discharge any such lien, encumbrance or charge. To
the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other
costs of enforcing the obligations secured hereby including without limitation, recording
fees, receiver's fees and expenses, and all other expenses of whatever kind or nature,
incurred by the prevailing party in connection with the enforcement of this Agreement,
whether or not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner or Affordable Housing Owner, City shall be entitled to
enforce performance of any obligation of Owner or Affordable Housing Owner arising
under this Agreement and to exercise all rights and powers under this Agreement or any
law now or hereafter in force. Additionally, without limiting any of City's other rights or
remedies, upon any leasing of a particular Affordable Unit in violation of this Agreement,
then Affordable Housing Owner shall pay the City a single fee of $10 (which shall
increase by $2 every five (5) years) per day until the violation has been cured (it being
understood that if the Affordable Unit is unavailable due to material damage or
destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to
recover from Affordable Housing Owner and Owner, in addition to enforcement costs
and any other damages to which City may be entitled, all rent charged by Owner in
excess of the rental amounts permitted under this Agreement, with interest thereon from
the date paid to Affordable Housing Owner until the date paid by Affordable Housing
Owner to City at the lesser of eight percent (8%) per annum or the maximum rate
permitted by law. Affordable Housing Owner and Owner stipulate, acknowledge and
agree that the amounts described herein are reasonable estimates of the minimum
damages incurred by the City and public as a result of violation(s), and that actual
damage would be impractical or impossible to determine with accuracy. No remedy
herein conferred upon or reserved to City is intended to be exclusive of any other
remedy herein or by law provided or permitted, but each shall be cumulative and shall
be in addition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by this Agreement to the City
may be exercised, concurrently or independently, from time to time and as often as may
be deemed expedient by the City, and the City may pursue inconsistent remedies. The
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City shall have the right to mandamus or other suit, action or proceeding at law or in
equity to require the Owner and the Affordable Housing Owner to perform its obligations
and covenants under this Agreement or to enjoin acts or things which may be unlawful
or in violation of the provisions hereof.
ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner or the Affordable Housing Owner:
ESSEX MOORPARK OWNER, L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by
overnight messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner or the City and the
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Affordable Housing Owner, or the City and any agents, employees or contractors of the
Owner or Affordable Housing Owner, and the Owner and the Affordable Housing Owner
shall each at all times be deemed an independent contractor and shall be wholly
responsible for the manner in which it or its agents, or both, perform the services
required of it by the terms of this Agreement for the operation of the Project. The Owner
and the Affordable Housing Owner have and hereby retain the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the
Project, the Owner and the Affordable Housing Owner shall be solely responsible for all
matters relating to payment of its employees, including compliance with Social Security,
withholding and all other laws and regulations governing such matters. The Owner and
the Affordable Housing Owner each agrees to be solely responsible for its own acts and
those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner or the Affordable Housing Owner may
have employed or with whom the Owner or the Affordable Housing Owner may have
contracted relative to the purchase of materials, supplies or equipment, or the furnishing
or the performance of any work or services with respect to the operation of the Project
or the Property.
7.4 [INTENTIONALLY OMITTED]
7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall
be personally liable to the Owner, or any successor in interest, or the Affordable
Housing Owner, or any successor in interest, in the event of any default or breach by
the City or for any amount which may become from the City or successor or on any City
obligation under the terms of this Agreement. No member, official, employee, attorney,
partner or consultant of the Owner or the Affordable Housing Owner shall be personally
liable to City in the event of any default or breach by Owner or for any amount which
may become due to City or its successor, or on any obligations under the terms of this
Agreement or Development Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner and Affordable Housing Owner
under this Agreement to any person or entity, including, but not limited to, City and its
successors and assigns, is limited to their interests in the Project and the Property, and
such persons and entities shall look exclusively thereto, or to such other security as
may from time to time be given for the payment of obligations arising out of this
Agreement or any other agreement securing the obligations of Owner or Affordable
Housing Owner, under this Agreement, (ii) from and after the date of this Agreement, no
deficiency or other personal judgment, nor any order or decree of specific performance
other than pertaining to this Agreement), shall be rendered against Owner or Affordable
Housing Owner, or their assets (other than their interests in the Project, and this
Agreement), in any action or proceeding arising out of this Agreement.
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7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, fire, earthquake, flood, extreme weather
conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of
terrorism, vandalism, malicious mischief, inability to procure or general shortage of
labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation,
inability or delay in obtaining government consents or permits, laws or orders of
governmental, civil, military or naval authorities, or any other cause, whether similar or
dissimilar to the foregoing, not within the party's control, other than lack of or inability to
procure monies to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner and the Affordable Housing Owner shall defend, indemnify and hold City
harmless from and against any and all claims, losses, damages, liabilities, costs and
expenses arising directly or indirectly from, or relating directly or indirectly to: (i) any
failure by Owner or Affordable Housing Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner, Affordable Housing Owner or any of
their employees, agents, contractors, licensees, invitees or tenants on the Project or the
Property.
7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated
in this Agreement, the rights and remedies of the parties are cumulative, and the
exercise or failure to exercise one or more of such rights or remedies by either party
shall not preclude the exercise by it, at the same time or different times, of any right or
remedy for the same default or any other default by the other party. No waiver of any
default or breach hereunder shall be implied from any omission to take action on
account of such default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the waiver, and such wavier
shall be operative only for the time and to the extent therein stated. Waivers of any
covenant, term, or condition contained herein shall not be construed as a waiver of any
subsequent breach of the same covenant, term or condition. The consent or approval
by the City to or of any act by the Owner or Affordable Housing Owner requiring further
consent or approval shall not be deemed to waive or render unnecessary the consent or
approval to or of any subsequent similar act. The exercise of any right, power, or
remedy shall in no event constitute a cure or a waiver of any default under this
Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice
the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in
equity as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner or Affordable Housing Owner under this
Agreement. No delay or omission to exercise any right or power accruing upon any
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default shall impair any such right or power or shall be construed to be a waiver of such
right or power, but any such right or power may be exercised from time to time and as
often as City may deem expedient. In order to entitle the City to exercise any remedy
reserved to it in this Agreement, it shall not be necessary to give any notice, other than
such notice as may be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner or Affordable Housing Owner shall be deemed to apply to any successor or
assign or successor-in-interest of such party who has acquired any portion of or interest
in the Project. Without limiting the foregoing, City may assign this Agreement to the
Area Housing Authority of the County of Ventura or any other housing authority created
by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner and Affordable Housing
Owner each covenant and agree for itself, and its successors and assigns and every
successor in interest to any portion of or interest in the Project that it and its successors,
assigns and successors in interest shall comply with all of the terms, provisions,
easements, conditions, covenants, restrictions, liens, and servitudes set forth in this
Agreement. This Agreement is intended to bind the Project and Property "run with the
land".
7.14 Transfers. Owner shall provide the City with prompt notice of any
conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the
applicable deed. Owner shall provide the City with at least thirty (30) days' prior written
notice of any sale or transfer of the Project or the Property or any portion thereof. The
Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which the Essex Portfolio, L.P. or any affiliate
thereof, directly or indirectly, owns or controls the entity to which the transfer will be
made, provided that the City is given a copy of the Assignment and Assumption
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Agreement and organizational documents that prove the entity is such an affiliate of
Essex Portfolio, L.P.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with
respect to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties
and has been the subject of arm's length and careful negotiation over a considerable
period of time, that each party has reviewed this Agreement with legal counsel, and that
each party has the requisite experience and sophistication to understand, interpret and
agree to the particular language of the provisions of this Agreement. Accordingly, in the
event of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of
California, without regard to conflict of law provisions, except to the extent federal law
applies. Venue for any action brought under this Agreement will be in the Superior Court
for the County of Ventura, California or in the United States District Court for the Central
District of California. Owner and Affordable Housing Owner each hereby accepts for
itself and in respect to its property, generally and unconditionally, the non-exclusive
jurisdiction of the foregoing courts. Owner and Affordable Housing Owner each
irrevocably consents to the service of process in any action or proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, to Owner and
Affordable Housing Owner at its address for notices pursuant to this Agreement.
Nothing contained herein shall affect the right of the City to serve process in any other
manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
a) "Hazardous Materials" shall mean:
1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of
the California Health and Safety Code at such time;
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2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117.5 or 25501(j) of the
California Health and Safety Code at such time;
3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under
any other present or future environmental or other similar laws relating to
the Project or the Property.
b) "Hazardous Materials Laws" means all federal, state, and local
laws, ordinances, regulations, orders and directives pertaining to Hazardous
Materials, in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner and Affordable Housing Owner hereby agree that:
a) Neither shall knowingly permit the Project, the Property or
any portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which
may contain chemicals listed by the State of California pursuant to Health and Safety
Code Section 25249.8 et seq., which substances are commonly used by a significant
portion of the population living within the region of the Project, including (without
limitation) alcoholic beverages, aspirin, tobacco products, and saccharine.
b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
c) Upon receiving actual knowledge of the same, the Owner or
Affordable Housing Owner shall immediately advise the City in writing of: (1) any and
all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
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completed or threatened against the Owner or the Project or the Property pursuant to
any applicable Hazardous Materials Laws; (2) any and all claims made or threatened by
any third party against the Owner or Affordable Housing Owner or the Project or the
Property relating to damage, contribution, cost recovery, compensation, loss or injury
resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1)
and this clause (2) are hereinafter referred to as "Hazardous Materials Claims"); (3) the
presence of any Hazardous Materials in, on or under the Project or the Property; or (4)
the Owner's or the Affordable Housing Owner's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
borderzone property" under the provisions of California Health and Safety Code,
Section 25220 et seq., or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Project or the Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner and Affordable Housing Owner hereby agree to
indemnify, protect, hold harmless and defend (by counsel reasonably approved by the
City) the City, and its City Council members, officers, employees, contractors, agents
and attorneys from and against any and all claims, losses, damages, liabilities, fines,
penalties, charges, administrative and judicial proceedings and orders, judgments,
remedial action requirements, enforcement actions of any kind, and all costs and
expenses incurred in connection therewith, including, but not limited to, reasonable
attorneys' fees and expenses(collectively, a "Loss"), arising directly or indirectly, in
whole or in part, out of (1) the failure of the Owner or the Affordable Housing Owner, as
applicable, or any other person or entity occupying or present on their respective
interest in the Project or Property, to comply with any Hazardous Materials Law relating
in any way whatsoever to the handling, treatment, presence, removal, storage,
decontamination, cleanup, transportation or disposal of Hazardous Materials into, on,
under or from the Project or the Property; (2) the presence in, on or under its interest in
the Project or the Property of any Hazardous Materials or any releases or discharges of
any Hazardous Materials into, on, under or from its interest in the Project or the
Property; or (3) any activity carried on or undertaken on its interest in the Project or the
Property during its ownership thereof, whether by the Owner or the Affordable Housing
Owner or any employees, agents, contractors or subcontractors, or any third persons at
any time occupying or present on the Project or the Property, in connection with the
handling, treatment, 'removal, storage, decontamination, cleanup, transport or disposal
of any Hazardous Materials at any time located or present on or under the Project or the
Property. The foregoing indemnity shall further apply to any residual contamination on
or under the Project or the Property, or affecting any natural resources, and to any
contamination of any property or natural resources arising in connection with the
generation, use, handling, treatment, storage, transport or disposal of any such
Hazardous Materials on, under, or from the Project or the Property, and irrespective of
whether any of such activities were or will be undertaken in accordance with Hazardous
Materials Laws. However, the foregoing indemnity shall not extend to the portion of any
Loss arising from the gross negligence, fraud or willful misconduct of the City or anyone
for whose actions the City is legally liable. This Section shall survive termination of this
Agreement.
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7.19.4 No Limitation. Owner and Affordable Housing Owner hereby
acknowledge and agree that their duties, obligations and liabilities under this Agreement
are in no way limited or otherwise affected by any information the City may have
concerning the Project or the Property and/or the presence within the Project or the
Property of any Hazardous Materials, whether the City obtained such information from
Owner or Affordable Housing Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner and Affordable Housing Owner shall
maintain and keep in force, at their sole cost and expense, the following insurance for
their respective interests in the Project, provided, however, that a Contractor's liability
policy may be used during construction provided it complies with all terms and
conditions of this Section:
a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for
bodily injury and property damage, including coverages for contractual liability, personal
injury, broad form property damage, products and completed operations. Beginning on
the fifth anniversary date of the recordation of this Agreement, and thereafter every five
5) years, the policy limits shall be increased by ten percent (10%) of the then-current
limit.
b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind
and sized apartment projects within the City.
d) A policy or policies of insurance against loss or damage to
the Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief,
and such other perils ordinarily included in extended coverage casualty insurance
policies. In addition, if Owner or Affordable Housing Owner carries coverage voluntarily
for additional causes (such as earthquake, riot, civil commotion or other), such coverage
shall be treated in all respects as the policy or policies required to be kept under this
paragraph (d) for so long as it continues to voluntarily carry such coverage. All
insurance hereunder, except earthquake insurance, shall be maintained in an amount
not less than one hundred percent (100%) of the Full Insurable Value of the Project as
defined below (such value to include amounts spent for construction of the Project,
architectural and engineering fees, and inspection and supervision). "Full Insurable
Value of the Project" shall mean the actual replacement cost excluding the cost of
excavation, foundation and footings below the ground level of the Project. To ascertain
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the amount of coverage required, Owner and Affordable Housing Owner shall cause the
Full Insurable Value to be determined from time to time, but in no event less often than
once each five (5) years, by appraisal by the insurer or by any appraiser mutually
acceptable to City, Owner and Affordable Housing Owner; except that no such
appraisals shall be required if the policy is written on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section
shall be provided under an occurrence form, and Owner and Affordable Housing Owner
shall maintain such coverage continuously so long as this Agreement is in force.
Should any of the required insurance be provided under a form of coverage that
includes an annual aggregate limit or provides that claims investigation or legal defense
costs be included in such annual aggregate limit, such annual aggregate limit shall be
one and one-half times the occurrence limits specified above. All policies shall be with
an insurance carrier licensed and admitted to do business in California and rated in
Best's Insurance Guide, or any successor thereto (or if there be none, an organization
having a national reputation) as having a "Best's Rating" of "A" and a "Financial Size
Category" of at least "VII" or if such ratings are not then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional
insured on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee.
Comprehensive general liability policies shall also be endorsed to name as additional
insureds the City, and its City Council members, officers, agents and employees. All
policies shall be endorsed to provide thirty (30) days prior written notice of cancellation,
reduction in coverage, or intent not to renew to the address established for notices to
the City pursuant to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time
during the Term of this Agreement, Owner and Affordable Housing Owner shall provide
certificates of insurance, in form and with insurers reasonably acceptable to the City,
evidencing compliance with the requirements of this Section, and shall provide complete
copies of such insurance policies, including a separate endorsement approved by the
City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an
additional insured.
7.21 Burden and Benefit. City and Owner and Affordable Housing Owner
hereby declare their understanding and intent of the burden of the covenants set forth
herein touching and concerning the Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be
made only upon the written mutual consent of the Parties. However, no changes shall
be made to this Agreement which would adversely affect any bonds issued under this
Project without the written consent of all appropriate parties with respect to any bond
issuance.
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7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City,
Owner, Affordable Housing Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner and Affordable
Housing Owner agree to cast affirmative ballots for the increase of any assessment for
existing assessment districts for the maintenance of parking and median landscaping,
street lighting and parks conferring special benefits, and for the formation of any new
assessment district for such purposes, in order to supplement then-existing
assessments upon properties within the Project. Owner and Affordable Housing Owner
hereby waive any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner and Affordable Housing
Owner shall pay the funds that the assessment district requires to the assessment
district within five (5) business days after written demand from the assessment district
from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby
incorporated herein to clarify that they survive the expiration of the Development
Agreement (but, except for Sections 8.1, 8.4 and 8. 7, such provisions will not survive
any earlier termination of the Development Agreement due to a default by the
Developer" thereunder) and continue until the expiration (or earlier termination) of this
Agreement, it being understood that all of the rights and benefits of Owner and
Affordable Housing Owner under the following (except for obligations thereunder arising
prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early
termination of the Development Agreement due to a default by Owner or Affordable
Housing Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. After the initial
conveyance by Owner to Affordable Housing Owner of Affordable Units, Owner and the
Affordable Housing Owner and their successors in interest shall not convey their
respective portions of the Property separately, but shall only convey them concurrently
and to the same purchaser, only to a purchaser reasonably approved in writing by City
which will consider the reputation and experience of the purchaser in owning and
operating affordable rental units). As a condition to the initial conveyance by Owner to
Affordable Housing Owner of Affordable Units, Owner and Affordable Housing Owner
shall execute, acknowledge and record (i) a separate agreement (Le., a covenant and
agreement to hold property as one parcel) imposing the foregoing restriction on the
Property, which shall be subject to the written approval of City, and (ii) "conditions,
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covenants and restrictions" for the Project ("CC&R's"), which shall also be subject to the
written approval of City. Such separate agreement and CC&R's shall be senior to any
and all deeds of trust and other liens (except property taxes and assessments not yet
due).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8. 2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements
that are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner and Affordable Housing Owner
agree that densities vested and incentives and concessions received in the Project
Approvals include all densities available as density bonuses and all incentives and
concessions to which Developer is entitled under the Moorpark Municipal Code,
Government Code Sections 65915 through 65917.5 or both; neither Owner nor
Affordable Housing Owner shall be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this
Agreement is in consideration for the density bonus obtained through the Project
Approvals that is greater than would otherwise be available. Residential Planned
Development Permit No. 2012-02, including the special conditions that incorporate and
include all of the requirements set forth in this Agreement are part of the Project
conditions of approval and not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner and
Affordable Housing Owner shall pay the City a single Five Thousand Dollar ($5,000)
Assessment District Formation Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment District containing two
zones (one zone to be fully funded and the other to be a back up zone), as determined
by the City at the City's discretion, shall be formed that includes the Property. The first
District out of the two Districts or the first zone of the one District, whichever is
34-
12853-0018\2043447v3.doc
422
applicable, shall be for the purposes of funding future costs for the maintenance
landscaping and irrigation of the landscaped area above the retaining wall along the
southern perimeter of the Property and the maintenance of the storm water quality basin
and drainage improvements, including basin landscaping and irrigation. The second
District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emergency access drive. It shall be the intent of the
City to approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for
the that fiscal year. The City shall administer the annual renewal of the Assessment
District or Districts, and any costs related to such administration shall be charged to the
fund established for such Assessment District revenues and expenses. Owner and
Affordable Housing Owner agree to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and for annual
increases in the assessments thereunder, for the purposes specified in this subsection.
Owner and Affordable Housing Owner hereby waive any right they may have to contest
or protest any such assessments or assessment increases. In the event that any such
Assessment District has insufficient funds for its purposes, then Owner or Affordable
Housing Owner shall pay the funds required to the Assessment District within five (5)
business days after written demand from the Assessment District from time to time.
Owner and Affordable Housing Owner also agree to add this language to any
Regulatory Agreement as part of the sale of any bonds issued by the City for the
Project.
8.5 Fee Protest Waiver. Owner and Affordable Housing Owner agree that any
fees and payments pursuant to the Development Agreement, this Agreement and for
RPD 2012-02 shall be made without reservation, and Developer expressly waives the
right to payment of any such fees under protest pursuant to California Government
Code Section 66020 and statutes amendatory or supplementary thereto.
8. 6 Required Tenant and Guest Parking. Owner and Affordable Housing
Owner agree to provide a total of at least 2.00 parking spaces per unit on site. Two
parking spaces shall be designated and reserved for each of the 2-bedroom and 3-
bedroom units, and one space shall be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest parking. At least
one of the parking spaces designated and reserved for each of the units shall be in a
garage or covered carport. There shall be no extra charges for required parking for any
units (whether or not they are Affordable Units). Owner and Affordable Housing Owner
shall only be required to provide ninety-four (94) guest parking spaces.
8. 7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge
the City's ability to modify the development standards and to change the General Plan
designation and zoning of the Property upon the termination or expiration of the
Development 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
35-
12853-0018\2043447v3.doc
423
development standards and density of permitted development to that in existence prior
to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone
Change No. 2004-04 ("ZC 2004-04").
8. 8 Indemnity. Owner and Affordable Housing Owner will defend, indemnify
and hold City harmless from and against any and all claims, liabilities, losses, damages,
costs and expenses arising from any activity by Owner or Affordable Housing Owner or
the contractors of either of them.
8. 9 Storm Water/Flood Detention Basin. City agrees that Owner and
Affordable Housing Owner may use the storm water/flood detention basin located on
the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for
the Project, and City shall execute and deliver a revocable license agreement to Owner
and Affordable Housing Owner to that effect; however, City may elect by written notice
to Owner and Affordable Housing Owner to relocate said detention basin and any
service road and secondary access road located on the City Property at any time, and
Owner and Affordable Housing Owner shall reimburse or pay City for the costs of such
relocation within ten (10) business days after written demand from City from time to time
describing such costs. Owner and Affordable Housing Owner shall promptly provide a
bond acceptable to City in the amount of such costs, as projected in good faith by City,
to ensure payment of the costs, and every two (2) years the amount of the bond shall be
increased (by amendment or by a replacement bond) by the percentage increase over
the applicable two year period in the Caltrans Highway Bid Price Index for Selected
California Construction Items, as determined in good faith by the City Manager.
WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
y: ° rP,PU
Ja ice S.Parvin, Mayor
36-
12853-0018\2043447v3.d oc
424
OWNER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management
Corporation,
a California corporation,
its general partner
By:
P ' ame stf
37-
12853-0018\2043447v3.doc
425
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of San Mateo
On February 23, 2017before me, Sandi A. Cabral, Notary Public
insert name and title of the officer)
personally appeared John Eudy
who proved to me on the basis of satisfactory evidence to be the person(s)whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
t;rcornmi:on#2='t
WITNESS my hand and official seal. Notary Public-California
V.,14ZYf,San Mateo County
01111 Mr Comm. Expires Feb 9,2020
Signature G.—ti Seal)
426
wl.
o Z
K
CITY OF MOORPARKa
09
I_Eirrartitt,
0 799 Moorpark Avenue,Moorpark,California 93021 I Phone(805)517-6200 I Fax(805) 532-2205
oOgsip,,,,,
rf0
A notary public orother officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK
On this 29th day of March in the year 2017, before me, Maureen Benson, City Clerk of
the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal r
OM*Maureen Benson
City Clerk 0.
JANICE S.PARVIN ROSEANN MIKOS,Ph.D. DAVID POLLOCK KEN SIMONS MARK VAN DAM
Mayor Councilmember Councilmember Councilmember Councilmember427
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27° 20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said
Parcel 1A.
428
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE;
LOCATIONS OF AFFORDABLE UNITS
Very Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 8 2 persons 156
2-br/2 bath 7 3 persons 175
3-br 1 4 persons 199
Total 16
Low Income
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 11 2 persons 156
2-br/2 bath 12 3 persons 175
3-br 1 4 persons 199
Total 24
Moderate Income but must instead be Low Income when tax credit and/or tax
exempt bond laws apply to the Project)
Type of Unit Number of Units Household Size Utility
Adjustment Allowance
1-br 0 2 persons 156
2-br/2 bath 5 3 persons 175
3-br 5 4 persons 199
Total 10
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
Illustration: For example, the maximum rent for a Very Low Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
12853-0018\2043447v3.doc
429
Illustration: For example, the maximum rent for a Low Income Household renting
a 2-bedroom unit would be calculated as follows: 30% x 60% x the Ventura County
median income for a household of three divided by 12, less the utility allowance.
Illustration: For example, the maximum rent for a Moderate Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 110% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
Utility Allowances will be adjusted annually using the most current "Allowances
for Tenant Furnished Utilities and Other Services" (form HUD-52667) based on
Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas— Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric uses)
Locations of Affordable Units (Including Handicapped-Compliant Units)
The Affordable Units (including handicapped-compliant units) shall be located as
shown on the site plan attached hereto.
12853-0018\2043447v3.doc
430
4
J 7 BELOW MARKET RATE UNITS(130)
4y [ UNIT PUN TYPE
UWE NO. BLDG.NO. FLOOR LEVEL INCOME LEVEL
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16 t5 _ 28 8212+2I 2ND FLOOR VERY LOW
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I... IF 30 A2(l+tl 3RD FLOOR LOW
1 1 I 17 14 . 31 Al(1+1) 1ST FLOOR LOW
may'
32 82(2+ 2) 15T FLOOR VERY LOW4
33 CI(3+2) 1ST FLOOR MODERATE
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40 82)2+ 2) 2ND FtA00. VERY LOW
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433
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification Recertification Unit Number
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and
personally each of the following questions for all persons who are to occupy the unit
being applied for in the above apartment project. Listed below are the names of all
persons who intend to reside in the unit:
1. 2. 3. 4. 5.
Name of Members Relationship
Of the to Head of Social Security Place of
Household Household Age Number Employment
Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of
all persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
fora unit is $ 1
If this form is being completed in accordance with recertification of a Lower Income Tenant's or Very Low Income Tenant's
occupancy of a Lower Income Unit or a Very Low Income Unit, respectively,this form must be completed based upon the
current income of the occupants.
Page 1 of 18
12853-0018\2043447v3.doc
434
Included in the total anticipated income listed above are:
a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal
services;
b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in income, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by
the family ;
c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only
as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net
family assets in excess of $5,000, annual income shall include the greater of the actual
income derived from all net family assets or a percentage of the value of such assets
based on the current passbook savings rate.
d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that
are received in a lump sum amount or in prospective monthly amounts;
e) payments in lieu of earnings, such as unemployment and disability
compensation, workers' compensation and severance pay;
f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the
welfare assistance agency in accordance with the actual cost of shelter and utilities, the
amount of welfare assistance income to be included as income shall consist of:
1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
2) the maximum amount that the welfare assistance agency could in fact
allow the family for shelter and utilities. If the family's welfare assistance is ratably
reduced form the standard of need by applying a percentage, the amount calculated
under this paragraph shall be the amount resulting from one application of the
percentage;
Page 2 of 18
12853-0018\2043447v3.doc
435
g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from
persons not residing in the dwelling;
h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the
special pay to a family member serving in the Armed Forces who is exposed to hostile
fire; and
Excluded from such anticipated income are:
a) income from employment of children (including foster children) under the age of
18 years;
b) payments received for the care of foster children or foster adults (usually persons
with disabilities, unrelated to the tenant family, who are unable to live alone);
c) lump sum additions to family assets, such as inheritances, insurance payments
including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
e) income of a live-in aide, as defined by 24 CFR §5.403;
f) the full amount of student financial assistance paid directly to the student or to
the educational institution;
g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits
because they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
3) amounts received by a participant in other publicly assisted programs
which are specifically for or in reimbursement of out-of-pocket expenses incurred
special equipment, clothing, transportation, child care, etc.) and which are made solely
to allow participation in a specific program;
4) amounts received under a resident service stipend is a modest amount
not to exceed $200 per month) received by a resident for performing a service for the
Page 3 of 18
12853-0018\2043447v3.doc
436
Public Housing Issuer or owner, on a part-time basis, that enhances the quality of life in
the development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including
training programs not affiliated with a local government) and training of a family member
as resident management staff. Amounts excluded by this provision must be received
under employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
i) temporary , nonrecurring or sporadic income (including gifts);
j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
k) earnings in excess of $480 for each full-term student 18 years old or older
excluding the head of household and spouse);
I) adoption assistance payments in excess of$480 per adopted child; and
m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and
equipment needed to keep the developmentally disabled family member at home; or
p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth
in 24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or
b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Page 4 of 18
12853-0018\2043447v3.doc
437
Yes No
c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
Yes No
d) If the answer to (c) above is yes, state:
1) the combined total value of all such assets: $
2) the amount of income expected to be derived from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ and
3) the amount of such income, if any, that was included in item 6 above:
8. Are all of the individuals who propose to reside in the unit full-time students*?
Yes No
A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the
owner of the rental housing project in which the unit is located (hereinafter the "Owner"),
has any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the
Owner to determine maximum income for eligibility to occupy the unit; and I/we declare
that all information set forth herein is true, correct and complete and based upon
information I/we deem reliable and that the statement of total anticipated income
contained in paragraph 6 is reasonable and based upon such investigation as the
undersigned deemed necessary.
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11. I/We will assist the Affordable Housing Owner in obtaining any information or
documents required to verify the statements made herein, including either an income
verification from my/our present employer(s) or copies of federal tax returns for the
immediately preceding calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Affordable Housing Owner to lease the unit and will entitle
the Owner to prevent or terminate my/our occupancy of the unit by institution of an
action for ejection or other appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this day of 20 year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
Page 6 of 18
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FOR COMPLETION BY OWNER/AFFORDABLE HOUSING OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($
2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount
in 7( d)(1) would be if invested in passbook savings ($ subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance ($
3) Enter at right the greater of the amount calculated under (1) or (2)
above:$
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Moderate-Income Tenant(s).
Qualifies the applicant(s) as a Lower-Income Tenant(s).
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
3. Number of apartment unit assigned: Bedroom size:
Rent:$
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other(
6.Is occupant a City of Moorpark resident on the waiting list who was given
priority?Yes:No:
Manager Date
Page 7 of 18
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440
INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Gross Net 1099 Public Social Pension Unemploy Military Alimony Family
Applicant Wages Income Income Assistance Security ment Pay and/or Supp.
Salaries* from 1040 disability or Child (regular gift
YTD as of:self workers Support from
employed) compensat person not
ion pay living in
unit)
1
2
3
4
A)TOTAL INCOME
Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or
insurance payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written
verification is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property* Savings
Stocks Bonds
Other**
B)TOTAL ASSET INCOME
Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount
of any loans secured by the property.
Does not include the personal property i.e.,furniture or automobiles.
TOTAL HOUSEHOLD INCOME (A+ B)
Page 8 of 18
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441
INCOME VERIFICATION
FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages Gross) Other Income
Avg. Total Hours
Overtime Worked Weekly
Bonuses Total Current Income
Commissions Year-to-Date Income
Current Base Pay
Pay Period: [] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase $ per
start date:
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
APPLICANT
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442
I hereby grant you permission to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed
under the Multifamily Revenue Bond Program.
Date
Print Name (Resident) Signature (Resident)
Please send to:
Management Co.
or Owner)
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443
INCOME VERIFICATION
for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
Page 11 of 18
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444
INCOME VERIFICATION
for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very
low income: Every income statement of a prospective tenant must be stringently
verified. In connection with my application for a rental unit, I hereby authorize the
Department of Social Services to release to
the specific information requested
below:
Date:
Signature:
Social Security No.:
Name (Print):
Address(Print)
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deductions: $
Are benefits expected to change?[ ] Yes [ ] No
If yes, please state date and amount:
Date: of change
Amount $
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445
If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption:
Amount:
Date:
Signature:
Title:
Please send form to:
Page 13 of 18
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INCOME VERIFICATION
for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the
Multifamily Housing Program for persons of very low income. Every income statement
of a prospective tenant must be stringently verified. In connection with my application
for a rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date:
Signature:
Caseload Number:
Name (Print):
Case Number:
Case Worker:
1. Number of persons included in budget:
2. Total monthly budget $
a) Amount of grant $
b) Date aid last began:
c)Other income and source:
d) Is other income included in total budget? Yes 0 No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):
4. If recipient is not receiving full grant, please indicate reason:
Overpayment due to client's failure to report other income
Computation error
Other:
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447
Date when full grant will resume:
Date:
Case Worker's Signature:
Telephone:
District Office:
Your very early response will be appreciated.
Please return form to:
Page 15 of 18
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448
DECLARATION OF NO INCOME
As managing agents for
Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence
and used only for the purpose of establishing eligibility.
Name of Management Company
By:
Name and Title
CERTIFICATION
do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from
any source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
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Support Verification
Source's Mailing Address:
Phone #:
Fax#:
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information
requested below regarding the above referenced individuals. This information will be
used only for determination of eligibility and/or rent computation. You will notice a
release of information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:
Social Security#:
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450
Please complete the following. If the monies are based on a percentage of the payor's
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
Child Support weekly( ) monthly(
yearly
Family Support weekly( ) monthly(
yearly
Alimony weekly( ) monthly(
yearly
Other weekly( ) monthly(
yearly
Please list
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:
Signature of Source:
SSN#:
Date Completed Form:
Page 18 of 18
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451
EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING
The undersigned,as the authorized
representative of the "Affordable Housing Owner"), has
read and is thoroughly familiar with the provisions of the Affordable Housing Agreement
by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the City of
Moorpark (the "City"), dated as of 2017.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date a Very Low
Income Tenant or Low Income Tenant vacated such Unit, as indicated:
Occupied by Very Low Income Tenants
Number of Units:
Occupied by Low Income Tenants
Number of Units:
Occupied by Moderate Income Tenants
Number of Units:
Held vacant for occupancy continuously since last occupied by Very Low Income
Tenants and Low Income Tenants:
Vacant Units
Number:
Occupied Units
Number:
Very Low Income Tenants and Low Income Tenants who commenced occupancy of
Units during the preceding [month/quarter]:
Very Low Income:
Units Nos.:
Page 1 of 2
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452
Low Income:
Units Nos.
Moderate Income:
Number of Units:
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of
each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the
size and number of bedrooms of each Unit. It also indicates which Units are occupied
by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants
and which Units became Low Income Units and Very Low Income Units and Moderate
Income Tenants during the preceding [month/quarter]. The information contained
thereon is true and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
and Affordable Housing Owner during such [month/quarter] and of Owner's and the
Affordable Housing Owner's performance under the Affordable Housing Agreement
among Owner, Affordable Housing Owner and the City, has been made under the
supervision of the undersigned; and (2) to the best of the knowledge of the undersigned,
based on the review described in clause (1) hereof, the neither the Owner nor the
Affordable Housing Owner is in default under any of the terms and provisions of the
above documents [or describe the nature of any default in detail and set forth the
measures being taken to remedy such default:
Page 2 of 2
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453
EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
INITIAL LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
Attached.)
12853-001812043447v3.doc
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ATTACHMENT 5
RESOLUTION NO. PC-2022-682
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF MOORPARK, CALIFORNIA,
RECOMMENDING THE CITY COUNCIL ADOPT AN
ORDINANCE APPROVING THE SECOND AMENDMENT
TO THE DEVELOPMENT AGREEMENT NO. 2012-03
BETWEEN THE CITY OF MOORPARK AND ESSEX
MOORPARK OWNER, L.P., AND A REVISED AMENDED
AND RESTATED AFFORDABLE HOUSING AGREEMENT,
AND MAKING A DETERMINATION OF EXEMPTION
PURSUANT TO THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT IN CONNECTION THEREWITH
WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public
hearing and adopted Resolution No. 2017-3582 approving Residential Planned
Development Permit No. 2012-02 for the construction of a 200-unit apartment complex
and associated site improvements on approximately 11.66 acres located at 150 Casey
Road, and adopted a Mitigated Negative Declaration from a previous project, Residential
Planned Development Permit No. 2004-06; and
WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443,
approving Development Agreement by and between the City of Moorpark and Essex
Moorpark Owner L.P. in association with Residential Planned Development Permit No.
2012-02; and
WHEREAS, on April 17, 2017, the Development Agreement was executed by the
City of Moorpark and Essex Moorpark Owner L.P; and
WHEREAS, on June 7, 2021, an application was filed to amend the terms of the
Development Agreement between the City of the Moorpark and Essex Moorpark Owner
L.P.; and
WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490
approving the First Amendment to DA No. 2012-03; and
WHEREAS, on September 19, 2022, an application was filed to amend the terms
of the Development Agreement between the City of the Moorpark and Essex Moorpark
Owner L.P.; and
WHEREAS, at a duly noticed public hearing on October 11, 2022, the Planning
Commission considered the Second Amendment to the Development Agreement,
including the agenda report and any supplements thereto and written public comments;
opened the public hearing and took and considered public testimony both for and against
the proposal; and
456
Resolution No. PC-2022-682
Page 2
WHEREAS, the Community Development Director has determined that the
request to amendment to the Development Agreement is consistent with the Mitigated
Negative Declaration adopted for the original project, including Residential Planned
Development No. 2012-02.
WHEREAS the Developer has demonstrated diligent pursuit of the Project
including submittal of building plans, further design work, and continued engagement with
City Staff; and
NOW, THEREFORE, THE PLANNING COMMSSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission hereby specifically finds that all the facts
set forth in the Recitals are true and correct.
SECTION 2. ENVIRONMENTAL FINDINGS: The Planning Commission concurs
with the Community Development Director that the Second Amendment to the
Development Agreement No. 2012-02 and the Amendment and Restated Affordable
Housing Agreement are consistent with the Mitigated Negative Declaration adopted for
the Residential Planned Development Permit No. 2004-06. The MND determined that
there are no significant impacts with the inclusion of specific mitigation measures
identified in the MND Mitigation Monitoring and Reporting Program. The proposed
amendments to the DA and AHA do not present any additional environmental impacts.
SECTION 3. DEVELOPMENT AGREEMENT FINDINGS: The Planning
Commission finds and declares as follows:
A. The provisions of the Second Amendment to the Development Agreement
are consistent with the General Plan in that the Project is consistent with
the Very High Density land use designation, helps achieve the goals of the
Land Use Element and Housing Element, and is consistent with the goals
and policies of all other elements.
B. The provisions of the Second Amendment to the Development Agreement
and the assurances that said agreement places upon the Project are
consistent with the provisions of Chapter 15.40 of the Moorpark Municipal
Code because the Development Agreement and Second Amendment
contain the elements required by Section 15.40.030 and shall be processed
through a duly-noticed public hearing process as required by law.
SECTION 4. Based on the findings and conclusions set forth in the above sections,
and based on all the other evidence in the record, the Planning Commission recommends
that the City Council adopt an Ordinance approving the Second Amendment to DA 2012-
03, including the Revised Amended and Restated Affordable Housing Agreement.
457
Resolution No. PC-2022-682
Page 3
SECTION 5. FILING OF RESOLUTION: The Community Development Director
shall cause a certified resolution to be filed in the book of original resolutions.
The action of the foregoing direction was approved by the following vote:
AYES: Commissioners Alva, Barrett, Brodsly, Rokos, and Chair Landis
NOES:
ABSENT:
ABSTAIN:
PASSED, AND ADOPTED this 11th day of October 2022.
Kipp Landis
Chair
Carlene Saxton
Community Development Director
Exhibit A - Second Amendment to Development Agreement No. 2012-03
Exhibit A – Revised Amended and Restated Affordable Housing Agreement
Exhibit B – Form Of Offsite Improvement Performance And Payment Bonds
458