HomeMy WebLinkAboutAGENDA REPORT 2022 1102 CCSA REG ITEM 11BCITY OF MOORPARK, CALIFORNIA
City Council Meeting
of November 2, 2022
ACTION ADOPTED ORDINANCE NO. 509.
(ROLL CALL VOTE: UNANIMOUS)
BY A. Hurtado.
B. Consider Ordinance No. 509 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. Staff Recommendation: Waive full reading,
declare Ordinance No. 509 read for the second time, and adopted as read. (ROLL
CALL VOTE REQUIRED)
Item: 11.B.
ORDINANCE NO. 509
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
Item: 11.B.
425
Ordinance No. 509
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.
426
Ordinance No. 509
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 2nd day of November, 2022.
Janice S. Parvin, Mayor
ATTEST:
Ky Spangler, City Clerk
Exhibit A: Second Amendment to Development Agreement with attachments
427
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. 509
Page 4 ATTACHMENT
428
-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. 509
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429
-2-
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. 509
Page 6
430
-3-
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. 509
Page 7
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-4-
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. 509
Page 8
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-5-
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. 509
Page 9
433
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;
Ordinance No. 509
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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;
Ordinance No. 509
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435
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. 509
Page 12
436
B-1
EXHIBIT “B”
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
“AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT”
(Exhibit D to First Amendment)
(Attached.)
Ordinance No. 509
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437
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. 509
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438
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
Ordinance No. 509
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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.
Ordinance No. 509
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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. 509
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441
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. 509
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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 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
Ordinance No. 509
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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. 509
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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. 509
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B-11
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.
Ordinance No. 509
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B-12
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.
Ordinance No. 509
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B-13
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.
Ordinance No. 509
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B-14
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.
Ordinance No. 509
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B-15
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. 509
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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. 509
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B-17
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.
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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
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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
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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
Ordinance No. 509
Page 40
464
B-29
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.
Ordinance No. 509
Page 41
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B-30
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
Ordinance No. 509
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B-31
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.
Ordinance No. 509
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B-32
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
Ordinance No. 509
Page 44
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B-33
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.
Ordinance No. 509
Page 45
469
B-34
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.
Ordinance No. 509
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B-35
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. 509
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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. 509
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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. 509
Page 49
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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. 509
Page 50
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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. 509
Page 51
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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. 509
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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. 509
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. 509
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
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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, 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.
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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]
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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
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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) $
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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
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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) ________________________________
________________________________
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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
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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 $____________________
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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:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
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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:__________________________________________________________
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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:
________________________________________________________
________________________________________________________
________________________________________________________
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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
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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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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: ______________________________
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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.: ______________________________________________________
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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:
.]
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EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(Attached.)
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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.
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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.)
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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
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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.
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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
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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)
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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.
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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
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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
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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)
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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.
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