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AGENDA REPORT 2022 1011 SPC PC ITEM 08A
CITY OF MOORPARK, CALIFORNIA Planning Commission Meeting of October 11, 2022 Item: 8.A. ACTION: Approved Staff Recommendation, Including Adoption of Resolution No. PC-2022-682. BY: J. Lugo A. Consider Resolution No. PC-2022-682 Recommending the City Council Consider an Ordinance for the Second Amendment to the Development Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark Owner, L.P., and an Amended and Restated Affordable Housing Agreement, and Making a Determination of Exemption Pursuant to the California Environmental Quality Act in Connection Therewithin, on the Application of Dan Johnson of Danco Communities (on Behalf of Essex Moorpark Owner L.P.). Staff Recommendation: 1) Open the public hearing, accept public testimony, and close the public hearing; and 2) Adopt Resolution No. PC-2022-682 recommending the City Council consider an ordinance approving the Second Amendment to the Development Agreement (DA) No. 2012-03, and an Amended and Restated Affordable Housing Agreement (ARAHA), and finding the project Exempt from the California Environmental Quality Act (CEQA). (Staff: Shanna Farley) Item: 8.A. MOORPARK PLANNING COMMISSION AGENDA REPORT TO: Honorable Planning Commission FROM: Shanna Farley, Principal Planner DATE: 10/11/2022 Special Meeting SUBJECT: Consider Resolution No. PC-2022-682 Recommending the City Council Consider an Ordinance for the Second Amendment to the Development Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark Owner, L.P., and a Revised Amended and Restated Affordable Housing Agreement, and Making a Determination of Exemption Pursuant to the California Environmental Quality Act in Connection Therewithin, on the Application of Dan Johnson of Danco Communities (on Behalf of Essex Moorpark Owner L.P.) STAFF RECOMMENDATION 1.Open the public hearing, accept public testimony, and close the public hearing; and 2.Adopt Resolution No. PC-2022-682 recommending the City Council consider an ordinance approving the Second Amendment to the Development Agreement (DA) No. 2012-03, and a Revised Amended and Restated Affordable Housing Agreement (ARAHA), and finding the project Exempt from the California Environmental Quality Act (CEQA). BACKGROUND On September 19, 2022, Dan Johnson (Applicant), for Danco Communities (on behalf of Essex Moorpark Owner L.P.), submitted a request to amend the terms of a DA between the City of Moorpark (City) and Essex Moorpark Owner, L.P. (Essex), related to a previously-approved 200-unit multi-family apartment project located at 150 Casey Road, referred to as Vendra Gardens. The First Amendment to the DA and this request were considered by an Ad Hoc Committee consisting of Councilmembers Castro and Groff. The Ad Hoc Committee was appointed on April 7, 2021. The request also includes an RARAHA, which is included in the proposed Second Amendment to the DA. The Applicant has requested the following amendments to the DA: 1 Honorable Planning Commission 10/11/2022 Special Meeting Page 2 • Allow use of income-restricted rental rates published by California Tax Credit Allocation Committee (TCAC), as opposed to the California Department of Housing and Community Development (HCD) in the DA and RARAHA (recommended by Ad Hoc); • Change in the income-restricted unit mix percentages in the DA and RARAHA (recommended by Ad Hoc); and, • Revising Section 10 to correct the description of the City Site which is to be conveyed to the City as part of the Project (recommended by Ad Hoc); and, • Attaching an exhibit to show the form and content of the “Offsite Improvement Performance and Payment Bond” (recommended by Ad Hoc); and, • Remove the requirement to relocate or underground utility facilities from the DA (not recommended by Ad Hoc). These requests are discussed further within the Discussion section below. “Vendra Gardens” Apartments Project Background and Past Amendment On October 1, 2012, the Essex Property Trust, Inc. filed an application for Residential Planned Development Permit No. 2012-02 (RPD) and DA No. 2012-03 for the construction of a 200-unit apartment project. Earlier entitlements, for a similar project at the site, had since expired. The earlier DA was not executed. On March 1, 2017, the City Council adopted Resolution No. 2017-3582 approving the RPD. On March 1, 2017, the City Council approved the AHA for the Project (Attachment 4). On March 15, 2017, the City Council adopted Ordinance No. 443 approving the DA (Attachment 2). On June 7, 2021, an application was filed by Essex Moorpark Owner L.P. to request the first amendment to the DA. On September 15, 2021, the City Council adopted Ordinance No. 490 approving the First Amendment to the DA (Attachment 3). The request included: change the approved-residential project to be fully affordable; and finance certain City development impact fees in the form of a 55-year residual loan. DISCUSSION AND ANALYSIS Danco Communities is in escrow to acquire the property and Project from Essex Moorpark Owner L.P. The approved Project will include only affordable units (as previously approved by the First Amendment to the DA). The potential new owner has applied for additional low-income housing tax credits and tax-exempt bonds to fund the construction of the Project, which require that the income limits of the units be adjusted to meet different thresholds. In addition, the applicant has identified numerous project costs that impact the feasibility of the Project, including increasing construction and supply costs, rising interest rates, and other market conditions. The requested amendments to the DA, which are outlined in more detail in the RARAHA attached to the DA, are intended to make the project more feasible to construct and align with funding requirements. The following changes are requested as part of the Second Amendment to the DA (Attachment 1, Exhibit A) and the attached RARAHA: 2 Honorable Planning Commission 10/11/2022 Special Meeting Page 3 • Replaces the use of HCD rent limits currently outlined in the AHA and instead uses TCAC rent limits which are applicable to low-income housing funded by Low Income Housing Tax Credits and projects financed with tax-exempt housing bonds based on information published by HUD (“TCAC Rents”); and • Changes the number of income restricted units as shown below. A complete unit mix breakdown is included in the proposed RARAHA. Income Limits Approved Unit Mix Approved Mix Percentage Proposed Unit Mix Proposed Mix Percentage Extremely Low 20 10% 21 11% Very Low 40 20% 48 24% Low 138 69% 129 65% Above Moderate (Manager Units) 2 1% 2 1% • Revision to the first paragraph of Section 10 of the First Amendment to the DA, correcting a description and attachments associated with the property to be conveyed to the City as part of the Project. • Attaching an exhibit showing the form and content of the “Offsite Improvement Performance and Payment Bonds”, as part of the First Amendment to the DA. The proposed rental rate changes to the project are consistent with the intent of the original Project entitlements but allow the applicant to take advantage of additional funding sources. The changes would result in a higher level of affordability for residents than previously approved, providing an improved benefit to the community. Although the same number of units would be constructed, the unit mix is proposed to include a higher number of lower income units than previously considered. The Project would therefore help the City progress to meeting the Regional Housing Need Allocation (RHNA) which stipulates that a certain number of housing units be constructed and available to a variety of income qualified households, described further below. The applicant also requested to remove provisions of the DA which require the existing powerlines on the property to be undergrounded or relocated, as identified in Section 10 of the DA (Attachment 3). The DA Ad Hoc Committee which reviewed the request consists of Councilmembers Castro and Groff, considered the request, but did not support the applicant’s request to modify the requirement to underground or relocate the onsite power poles. The relocation and undergrounding of utility lines and poles was determined to be both a community and site benefit. In addition, no other residential project in the city has been approved to allow utility poles to remain on private property through a project site. 3 Honorable Planning Commission 10/11/2022 Special Meeting Page 4 The DA also includes two revisions to clarify information in the previously approved First Amendment to the DA. These two revisions include no substantiative changes to the intent of the DA. First, revisions to Section 10 of the First Amendment to the DA include a revised description of the City Site which would be conveyed to the City as part of the Project and would allow utilities and right-of-way improvements along High Street. The revised text would replace the previous text in paragraph one of Section 10. The revised text also includes a new exhibit to show the revised plan. Second, an example of an “Offsite Improvement Performance and Payment Bonds” is also included to show the form and content of the eventual bond. The applicant has requested additional time to allow the relocation of the power poles to occur. Section 6.26 of the amended DA requires that the Developer “…make “commercially reasonable best efforts to relocate and underground the existing overhead Southern California Edison (“Edison”) 66kv utility lines and poles (“Utility Facilities”) located on the Property and the City Site at is sole cost and expense no later than thirty-six (36) months following acquisition of the Property by the Affordable Housing Developer.” In acknowledgement of the time and tasks associate with Edison process and engineering work, an extension of time has been granted to extend this timeframe to sixty (60) months. It is likely that the project will be complete within that timeframe, posing some risk to the City in ensuring this work is completed. Therefore, a requirement to provide a bond equivalent to the cost of the work has to the City has been added to the DA which provides surety that the work will be performed. The Applicant has submitted building plans for at-risk permit review to achieve various deadlines related to funding requirements. The plans include minor changes to architectural elements of the Project to be considered by the Community Development Director. Such changes include the removal of garage doors, addition of solar panels, relocation of an emergency access road, and other minor site revisions. Should more comprehensive changes be proposed, further review by the Planning Commission and City Council may be required. General Plan Consistency The General Plan land use designation of the Project site is Very High Density Residential (VH). The VH land use designation is intended for residential development characterized by multi-family attached units, including apartment and condominium buildings. It is intended that this category utilize innovative site planning, provide on-site recreational amenities, and be near major community facilities, business centers and major arterials. The land use designation of VH allows a maximum density of 15 dwelling units per acre; however, through negotiation of the DA, the Project was approved at a gross density of 18.9 dwelling units per acre with the provision of affordable housing. The proposed amendments to the DA would not change the density of the approved project. 4 Honorable Planning Commission 10/11/2022 Special Meeting Page 5 The amendments to the Development Agreement for the approved Project are consistent with the existing General Plan land use designation. In addition, the Project remains consistent with the General Plan goals and policies identified below: Housing Element Goals and Policies • GOAL 2: Provide residential sites through land use, zoning and specific plan designations to provide a range of housing opportunities. Policy 2.2: Ensure residential sites have appropriate public services, facilities, circulation, and other needed infrastructure to support development. • GOAL 3: Expand and protect housing opportunities for lower income households and special needs groups. Policy 3.4: Require, in aggregate, 10% of new units to be affordable to lower income households. Establishing priority for usage of in-lieu fee is as follows: 1st priority – production of affordable housing; 2nd priority – subsidy of affordable housing; 3rd priority – housing rehabilitation; 4th priority – housing assistance; and 5th priority – staffing costs. Land Use Element Goals and Policies • GOAL 3: Provide a variety of housing types and opportunities for all economic segments of the community. Policy 3.3: Where feasible, inclusionary zoning shall be used to require that a percentage of new, private residential development be affordable to very low to moderate income households. • GOAL 5: Develop new residential housing which is compatible with the character of existing individual neighborhoods and minimizes land use incompatibility. Policy 5.1: Multiple-family dwellings shall be developed in close proximity to employment opportunities, shopping areas, public parks, and transit lines, with careful consideration of the proximity to and compatibility with single-family neighborhoods. In addition, to the Project’s conformance with the Goals and Policies of the General Plan, the development will also provide the City with affordable housing units required by the General Plan Housing Element and HCD. A summary of the City’s current (6th Cycle, 2022-2029) RHNA obligation, and the impacts of the approved development are outlined in the following table: Housing Type RHNA Required for 2022-2029 Vendra Gardens as Modified Very Low Income 377 Units 198 Units* Low Income 233 Units Moderate 245 Units 5 Honorable Planning Commission 10/11/2022 Special Meeting Page 6 Above Moderate 434 Units 2 Units (Managers) Totals: 1,289 Units Required 200 Approved Units *198 Units included with the project will be provided at varied income levels between extremely-low to moderate. Zoning Consistency The zoning designation of the subject property is Residential Planned Development (RPD). The purpose of the RPD zone is to provide areas for communities to be developed using modern land planning and unified design techniques. The amendments to the Development Agreement and the approved Project are consistent with the RPD zone in that the project would continue to provide housing as part of a - planned development within a residential area. ENVIRONMENTAL DETERMINATION Pursuant to the California Environmental Quality Act, the City Council adopted a Mitigated Negative Declaration (MND) on July 18, 2007, that analyzed the environmental impacts associated with development of the Project. The MND determined that there are no significant impacts with the inclusion of specific mitigation measures identified in the MND Mitigation Monitoring and Reporting Program. The proposed amendments to the DA and AHA do not present any additional environmental impacts. Therefore, the Project remains consistent with the previously-adopted MND and no further environmental documentation is required. NOTICING Public Notice for this meeting was provided consistent with Chapter 17.44.070 of the Zoning Ordinance as follows: 1. Publication. The notice of the public hearing was published in the Ventura County Star on September 30, 2022. 2. Mailing. The notice of the public hearing was mailed on September 30, 2022, to owners of real property, as identified on the latest adjusted Ventura County Tax Assessor Roles, within 1,000 feet of the exterior boundaries of the assessor’s parcel(s) subject to the hearing. 3. Sign. One 32 square-foot sign was placed at the street frontage on September 30, 2022. ATTACHMENTS 1. Draft Resolution No. PC-2022-682 Exhibit A: Draft Second Amendment to Development Agreement No. 2012-03 (Substantially as to form - including Draft Revised Amended and Restated Affordable Housing Agreement and Offsite Improvement Performance and Payment Bonds) 6 Honorable Planning Commission 10/11/2022 Special Meeting Page 7 2. Development Agreement No. 2012-03 3. First Amendment to Development Agreement No. 2012-03 4. Affordable Housing Agreement with Essex Moorpark Owner, L.P. 7 RESOLUTION NO. PC-2022-682 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING THE SECOND AMENDMENT TO THE DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P., AND A REVISED AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT, AND MAKING A DETERMINATION OF EXEMPTION PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT IN CONNECTION THEREWITH WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public hearing and adopted Resolution No. 2017-3582 approving Residential Planned Development Permit No. 2012-02 for the construction of a 200-unit apartment complex and associated site improvements on approximately 11.66 acres located at 150 Casey Road, and adopted a Mitigated Negative Declaration from a previous project, Residential Planned Development Permit No. 2004-06; and WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443, approving Development Agreement by and between the City of Moorpark and Essex Moorpark Owner L.P. in association with Residential Planned Development Permit No. 2012-02; and WHEREAS, on April 17, 2017, the Development Agreement was executed by the City of Moorpark and Essex Moorpark Owner L.P; and WHEREAS, on June 7, 2021, an application was filed to amend the terms of the Development Agreement between the City of the Moorpark and Essex Moorpark Owner L.P.; and WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490 approving the First Amendment to DA No. 2012-03; and WHEREAS, on September 19, 2022, an application was filed to amend the terms of the Development Agreement between the City of the Moorpark and Essex Moorpark Owner L.P.; and WHEREAS, at a duly noticed public hearing on October 11, 2022, the Planning Commission considered the Second Amendment to the Development Agreement, including the agenda report and any supplements thereto and written public comments; opened the public hearing and took and considered public testimony both for and against the proposal; and PC ATTACHMENT 1 8 Resolution No. PC-2022-682 Page 2 WHEREAS, the Community Development Director has determined that the request to amendment to the Development Agreement is consistent with the Mitigated Negative Declaration adopted for the original project, including Residential Planned Development No. 2012-02. WHEREAS the Developer has demonstrated diligent pursuit of the Project including submittal of building plans, further design work, and continued engagement with City Staff; and NOW, THEREFORE, THE PLANNING COMMSSION OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The Planning Commission hereby specifically finds that all the facts set forth in the Recitals are true and correct. SECTION 2. ENVIRONMENTAL FINDINGS: The Planning Commission concurs with the Community Development Director that the Second Amendment to the Development Agreement No. 2012-02 and the Amendment and Restated Affordable Housing Agreement are consistent with the Mitigated Negative Declaration adopted for the Residential Planned Development Permit No. 2004-06. The MND determined that there are no significant impacts with the inclusion of specific mitigation measures identified in the MND Mitigation Monitoring and Reporting Program. The proposed amendments to the DA and AHA do not present any additional environmental impacts. SECTION 3. DEVELOPMENT AGREEMENT FINDINGS: The Planning Commission finds and declares as follows: A. The provisions of the Second Amendment to the Development Agreement are consistent with the General Plan in that the Project is consistent with the Very High Density land use designation, helps achieve the goals of the Land Use Element and Housing Element, and is consistent with the goals and policies of all other elements. B. The provisions of the Second Amendment to the Development Agreement and the assurances that said agreement places upon the Project are consistent with the provisions of Chapter 15.40 of the Moorpark Municipal Code because the Development Agreement and Second Amendment contain the elements required by Section 15.40.030 and shall be processed through a duly-noticed public hearing process as required by law. SECTION 4. Based on the findings and conclusions set forth in the above sections, and based on all the other evidence in the record, the Planning Commission recommends that the City Council adopt an Ordinance approving the Second Amendment to DA 2012- 03, including the Revised Amended and Restated Affordable Housing Agreement. 9 Resolution No. PC-2022-682 Page 3 SECTION 5. FILING OF RESOLUTION: The Community Development Director shall cause a certified resolution to be filed in the book of original resolutions. The action of the foregoing direction was approved by the following vote: AYES: NOES: ABSENT: ABSTAIN: PASSED, AND ADOPTED this 11th day of October 2022. Kipp Landis Chair Carlene Saxton Community Development Director Exhibit A - Second Amendment to Development Agreement No. 2012-03 Exhibit A – Revised Amended and Restated Affordable Housing Agreement Exhibit B - Form Of Offsite Improvement Performance And Payment Bonds 10 -1- 12853-0092\2729176v3.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. 11 -2- 12853-0092\2729176v3.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”); 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 and extend the date for satisfying certain conditions as set forth herein. NOW, THEREFORE, the parties hereby agree as follows: 1. Amendments. a. Exhibit D to the First Amendment is hereby deleted and is replaced with the Revised Amended and Restated Affordable Housing Agreement attached as Exhibit “A” hereto (which contains altered provisions). b. Section 2 of the First Amendment is hereby amended to extend the October 29, 2022 date set forth therein to December 12, 2022. c. 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 the City by grant deed the ‘City Site’ as described on Exhibit B to the First Amendment.” d. The last paragraph of Section 10 of the First Amendment is hereby deleted in its entirety and revised to read as follows: 12 -3- 12853-0092\2729176v3.doc “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 to 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.” e. 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 B 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. 13 -4- 12853-0092\2729176v3.doc IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. DEVELOPER: 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 14 A-0- 12853-0092\2729176v3.doc 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) 15 -1- 12853-0092\2729176v3.doc 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) 16 -2- 12853-0092\2729176v3.doc EXHIBIT “A” “REVISED “AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT” (Attached.) 17 EXHIBIT A -3- 12853-0092\2729176v3.doc 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 REVISED AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT by and between CITY OF MOORPARK and MOORPARK CASEY ROAD LP Dated as of ___________, 2022 18 -2- 12853-0092\2729176v3.doc REVISED AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT THIS REVISED 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 recorded on April 17, 2017 as Instrument Number 20170417- 00050721-0 1/67 in the Official Records of Ventura County, California and was assigned to Owner pursuant to that certain Assignment and Assumption Agreement dated _______________, 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 referred to as the “Project Approvals”. C. The RPD requires that the apartments described on Exhibit No. 2 attached hereto (located as described on such exhibit) be affordable and available to households with income that does not exceed specified levels, as described on Exhibit No. 2, for the Term (as defined in Article 1 below) of this Agreement. D. The Development Agreement requires that 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 19 -3- 12853-0092\2729176v3.doc 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 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. 20 -4- 12853-0092\2729176v3.doc “Extremely Low Income Household” or “Extremely Low Income Tenant” means individuals or households qualified on the basis of a “certification of tenant eligibility” as certified by such individual or household, who have a gross income which does not exceed Extremely Low Income, adjusted for household size. “Extremely Low Income Units” means Units rented to Extremely Low Income Households. “HCD” shall mean the Department of Housing and Community Development (HCD) of the State of California. “Initial Rent-Up” shall mean the period between the issuance of a certificate of occupancy for the first residential unit in the Project and “Stabilization” (as defined below). “Low Income” or “Lower Income” shall mean a household income that does not exceed eighty percent (80%) of the County Median Income, adjusted for household size appropriate to the Unit. “Low Income Household” or “Lower Income Household” or “Low Income Tenant” means individuals or households qualified on the basis of a “certification of tenant eligibility” as certified by such individual or household, who have a gross income which does not exceed Low Income, adjusted for household size. “Low Income Units” means Units rented to Low Income Households. “Owner” shall mean 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 functionally related and subordinate facilities, and all improvements required by the Project Approvals. “Project Approvals” is defined in Recital B above. “Property” shall mean that real property in the City of Moorpark, California described on Exhibit No. 1. “Stabilization” shall mean the time at which the Project achieves ninety percent (90%) occupancy for ninety (90) consecutive days. “Term” shall mean from the date of recordation of this Agreement until the later of: (i) the date that the Property is no longer zoned for any residential use and cannot be used for any residential use or purpose as a “non-conforming use” and has no residential occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement. 21 -5- 12853-0092\2729176v3.doc “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 22 -6- 12853-0092\2729176v3.doc enforceable by the City (which may only enforce this Agreement as to the Affordable Units restricted by this Agreement), it is contemplated that such tax credits will necessitate restricting all of the units at the Project (except manager’s units) for rent to Extremely Low Income Households, Very Low Income Households and Low Income Households during the periods set forth in the Internal Revenue Code, as the same may be modified by law applicable to the low income housing tax credits (the “Compliance Period and Extend Use Period”) and applicable to the tax exempt bonds (the “Qualified Project Period”). 2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to be recorded in the Office of the County Recorder of Ventura County, California concurrently with the closing of the Project Financing, and Owner shall ensure that this Agreement shall be senior in priority to any lien, encumbrance or other matter of record except for property taxes and assessments not yet due and existing easements necessary for the operation of the Project or as otherwise expressly approved in writing by City. The Owner shall pay all fees and charges in connection with any such recordation. 2.3 Use of the Property. Owner represents, warrants, and covenants to develop and operate the Project and Property as a multifamily residential rental property and uses incidental thereto and for no other purposes. Amenities for the Affordable Units shall include, without limitation, air conditioning/heating, plumbing and electrical fixtures, garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solarready, water heater, built-in oven, microwave, stove, bathroom fan, , doors and door hardware, and floor and window coverings. Owner agrees not to convert the Project or any part thereof to any type of common interest development, for-sale condominiums, community apartments, planned development, stock cooperative, hotel, motel, or any type of congregate care or assisted living facility. Owner agrees that they shall not knowingly permit any of the Units in the Project to be used on a transient basis and shall not rent any Unit for a period of less than thirty (30) days. At no time shall any of the Affordable Units be rented to an employee, agent, officer, contractor of any owner of any portion of the Property or Project or of any company affiliated with any such owner, or to any such affiliated company. 2.4 INTENTIONALLY OMITTED 2.5 Rules. In addition to the conditions and restrictions to be contained in leases or rental agreements as provided in this Agreement, ongoing operation of the Project will be subject to reasonable house rules, policies and regulations issued from time to time by Owner and approved by City which approval shall not be unreasonably withheld, conditioned, or delayed (“Rules”). Owner shall submit such Rules to City during the Initial Rent-Up for the City’s approval, which will not be withheld, conditioned or delayed. Annually, Owner shall submit any amendments, modifications or changes to such Rules to the City at least forty-five (45) days prior to their proposed effective date 23 -7- 12853-0092\2729176v3.doc 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 whenever the list changes. Should there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant desiring to rent such a unit but all such units are rented, Owner shall add such prospective tenant to the waiting list for the affordable accessible-compliant units. At the earliest possible time an Extremely Low or Very Low or Low Income non-accessible compliant affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low Income tenant who occupies the affordable accessible compliant unit shall be relocated to another affordable unit in order to allow the qualified disabled household to occupy the accessible compliant unit. Owner shall include a provision in the non-accessible compliant affordable lease for any accessible-compliant affordable unit that the non- accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at Owner’s cost, as soon as a non-accessible compliant unit becomes available. While any of the 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. 24 -8- 12853-0092\2729176v3.doc 2.7.2 [Intentionally Deleted]. 2.7.3 Preference Policies. To the extent permitted by applicable state and federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list for the Affordable Units shall be maintained from which vacancies shall be filled. The waiting list shall be established through a fair process for the selection of the next eligible households to fill the vacancies allowing for priority for City of Moorpark residents to the extent permitted by applicable state and federal law. Details of this process shall be submitted in writing to the City for review and approval prior to the issuance of the first building permit for this project. Additionally, Owner shall submit to City an annual report, no later than January 30 of each calendar year for the pervious calendar year, describing the vacancies filled from households on the list, total vacancies filled and the number of households on the list. 2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will advise City on a quarterly basis in writing of the number of Affordable Units in the entire Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a certificate in the form specified by the City, which is attached hereto as Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City of Moorpark resident who on the waiting list and was given priority. Any reporting schedule less frequent than quarterly must be expressly approved in writing by the City Manager. 2.7.5 Unit Classification. Subject to the rules and regulations of the California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other than for a temporary period (not to exceed 60 days), at which time the classification of the Unit shall be redetermined (provided that upon such reclassification, Owner must remain in compliance with this Agreement). Owner shall use commercially reasonable efforts to prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3 attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner shall make a good faith effort to verify that the income declared by an applicant in an income certification is accurate by reviewing any one or more of the following documents, which shall be provided by the applicant: (a) A pay stub for the most recent pay period; (b) An income tax return for the most recent tax year; (c) An income verification form from the applicant’s current employer; (d) An income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of those agencies; or 25 -9- 12853-0092\2729176v3.doc (e) If the applicant is unemployed and has no tax return, another form of independent verification is needed. In addition to the above-referenced income certification and subject to fair housing laws and the rules and regulations of the California Tax Credit Allocation Committee, eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant units shall submit a letter from a physician or other document acceptable to the City and Owner which confirms the accessibility needs of the applicant. 2.7.6 Lease Provisions. Subject to the rules and regulations of the California Tax Credit Allocation Committee, the Owner shall include provisions in all signed leases or rental agreements for all Affordable Units which authorize the Owner to immediately terminate the tenancy of any tenant occupying an Affordable Unit where one or more of such tenants have misrepresented any fact material to the qualification of such an individual or household as an Extremely Low or Very Low or Low Income Tenant and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably enforce such termination rights (i.e., Owner shall exercise them and not waive them). Each lease or rental agreement for an Affordable Unit shall also provide that the tenants of such Affordable Unit shall be subject to annual certification or recertification of income, as required by the City, and shall be subject to rental increases in accordance with Section 2.11 of this Agreement. 2.7.7 Management Diligence. Owner shall use commercially reasonable efforts not to allow any rent-ready Affordable Unit to remain vacant. 2.7.8 Administration by City; Administrative Fee. City shall appoint a staff person to oversee the implementation of this Agreement, and shall notify Owner in writing of the name and phone number of such staff person and any replacements. On or before the first day of June of each year during the Term of this Agreement, commencing after the first residential occupancy of the Project, Owner shall pay to the City for the administration of this Agreement (and be jointly and severally liable for) an annual fee equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the larger of (a) or (b) below: (a) The percentage increase in the Consumer Price Index during the prior year, which shall be determined by using the Consumer Price Index by the U. S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long Beach-Anaheim index). The calculation shall be made by copying such CPI for the month of October to the CPI for the previous October. (b) The annual percentage amount paid to City by the Local Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective yield amounts paid by LAIF for the City’s Pooled Money Investment Account for the most recent four (4) calendar quarters divided by four (4). 26 -10- 12853-0092\2729176v3.doc In the event the CPI or LAIF is discontinued or revised, such successor index with which they are replaced shall be used to achieve substantially the same result, or it there is no successor index, then another index shall be used to achieve substantially the same result. 2.7.9 Lease Provisions. The provisions relating to certification and recertification of income in the form of lease or rental agreement used by the Owner for the lease or rental of the Affordable Units shall be subject to review and approval by the City, the approval of which shall not be unreasonably withheld, conditioned, or delayed. If the lease or rental agreement provisions specified in this Section are not approved or disapproved within thirty (30) days after submittal to City, they shall be deemed approved. 2.8 Rent-Up Periods and Occupancy Procedures. 2.8.1 In connection with the Initial Lease-Up of the Project, Owner will adopt outreach programs to locate qualified tenants for the Project and shall establish such procedures for occupancy, rental, and rent grievances as may be reasonably required by the City. Not later than ten (10) days prior to the commencement of marketing, Owner shall prepare and submit to the City for reasonable approval a marketing and outreach program which shall contain, among other things, the following: how a potential tenant would apply to rent a Unit in the Project, including where to apply, applicable income limits and rent levels; support documentation needed such as pay stubs, tax returns, or confirmation of disability, if applicable, a description of procedures Owner will follow to publicize vacancies in the Project, including notice in newspapers of general circulation, including at least one Spanish-language newspaper and mailing notices of vacancies to or contacting by telephone potential tenants on the waiting list maintained by Owner. Notices shall also be given to organizations in Ventura County which provide referrals or other services to persons with disabilities. 2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy (including by damage or destruction), then until the Affordable Unit is repaired/reconstructed (so that it is available for leasing in compliance with this Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2 every five (5) years) per day until the Affordable Unit is placed back in service except that such fee shall not be payable for so long as Owner is diligently attempting to repair or re- build the Affordable Unit in question, as shown by reasonable evidence provided to City. 2.9 Affordable Rent. 2.9.1 Monthly rent charged to Extremely Low Income households shall be no greater than thirty percent (30%) of thirty percent (30%) of County Median Income, adjusted for family size appropriate for the Unit, less the Utility Allowance. “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. 27 -11- 12853-0092\2729176v3.doc 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 Median Income when and as determined by HCD. The rents charged for the Affordable Units following such an increase, or upon a vacancy and new occupancy by an Extremely Low 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. 28 -12- 12853-0092\2729176v3.doc 2.12 Increased Income of Occupying Households. Only after the last to expire of the Compliance Period and Extended Use Period or the Qualified Project Period with respect to the Extremely Low Income Units and Very Low Income Units, the following shall apply: 2.12.1 If, upon income recertification, the Owner determines that the household income of an Extremely Low Income Tenant has increased above the maximum allowable household income level of an Extremely Low Income Tenant, but remains equal to or below that of a Very Low Income household, then, except as provided below in this Section 2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of the County Median Income for the size household appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to the occupants thereof. In that event, the next available unit that was previously a Very Low Income Unit must be rented to (or held vacant and available for immediate occupancy by) an Extremely Low Income household. 2.12.2 If, upon income recertification, the Owner determines that the household income of a Very Low Income Tenant has increased above the maximum allowable household income level of a Very Low Income Tenant, but remains equal to or below that of a Low Income household, then, except as provided below in this Section 2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of the County Median Income for the size household appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to the occupants thereof. In that event, the next available unit that was previously a Low Income Unit must be rented to (or held vacant and available for immediate occupancy by) a Very Low Income household. Notwithstanding the foregoing, any such Tenant shall have the right to request a recertification of income (not later than sixty (60) days prior to the date they are supposed to vacate). If the recertification shows that income is not greater than the maximum allowable household income level due to a documented voluntary reduction of income, then the notice to vacate shall be withdrawn. Until the last to end of the Compliance Period and Extended Use Period or the Qualified Project Period, Owner shall comply with laws and regulations of CTCAC, CDLAC and any separate/additional recorded restrictions or “Regulatory Agreement” required by the Affordable Housing Financing and such requirements with respect to over- income tenants shall prevail. Owner shall promptly deliver to City copies of all Affordable Housing Financing regulatory agreements or similar agreements restricting Units in the Project, and shall notify City and all affected tenants in writing of the expiration of the period at least one (1) 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. 29 -13- 12853-0092\2729176v3.doc Additionally, Owner shall notify City in writing of any re-syndication or extension of tax credit financing and any defeasance or refinancing of bond financing as soon as they become reasonably likely. 2.13 Specific Enforcement of Affordability Restrictions. 2.13.1 Owner hereby agrees that specific enforcement of Owner’s agreements to comply with the allowable rent and occupancy restrictions of this Agreement is one of the reasons for the City’s issuing the Project Approvals and entering into the Amendment to Development Agreement. 2.13.2 Owner further agrees that, in the event of any breach of such requirements, potential monetary damages to City, as well as prospective Extremely Low and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and quantify. 2.13.3 Therefore, in addition to any other relief or damages to which the City may be entitled as a consequence of the breach hereof, Owner agrees to the imposition of the remedy of specific performance against it in the case of any event of default by Owner in complying with the allowable rent, occupancy restrictions or any other provision of this Agreement. Nothing herein shall impair City’s rights to liquidated damages under Section 6.4 below. 2.14 [INTENTIONALLY OMITTED] 2.15 Reporting Requirements. 2.15.1 From the commencement of construction until the end of the first quarter or the end of the calendar quarter in which construction of the Project was completed, whichever occurs later, Owner shall prepare and submit to the City, on a quarterly basis, written reports, setting forth the rental activity for the previous month, and the current total number of Affordable Units occupied by tenants. 2.15.2 Commencing with the first full calendar quarter after the last period covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a Certificate of Continuing Program Compliance in a form substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or held vacant and available for occupancy by such Tenants during said period; and (b) that to the knowledge of Owner, no default has occurred under the provisions of this Agreement; and (c) such other information as may be requested in writing by the City Manager. 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. 30 -14- 12853-0092\2729176v3.doc 2.15.4 Owner shall also deliver to City from time to time any other information about the Affordable Units and the rental thereof as may be reasonably requested in writing by City within ten (10) days after any such written request. ARTICLE 3 OPERATIONS 3.1 [INTENTIONALLY OMITTED] 3.2 Management Agent. 3.2.1 The Project shall at all times be managed by the Owner or a single third-party management agent with demonstrated ability to operate, and experience in operating, residential housing including restricted affordable housing, in a manner that will provide decent, safe and sanitary residential facilities to occupants thereof, including experience in complying with reporting requirements and occupancy restrictions similar to those imposed upon the Project by the terms of this Agreement. (There may only be one manager for the entire Project at any one time.) 3.2.2 The Owner, directly or through an affiliate, may be the “manager” of the Project. The Owner may retain on-site personnel and other consultants and service providers to assist Owner to operate the Project effectively and in compliance with the provisions of this Agreement and state and federal law. 3.2.3 In the event that Owner seeks to appoint a replacement management entity to manage the Project, they shall advise the City of the identity of any such qualified management agent not later than thirty (30) days prior to the effective date of such appointment. The Owner shall also submit such additional information about the background, experience and financial condition of any proposed management agent as is reasonably requested by the City. 3.2.4 Upon the City’s written request, the Owner shall cooperate with the City in an annual review of the management practices and status of Project. The purpose of each annual review will be to enable the City to determine if the Project is being operated and managed in accordance with the requirements and standards of this Agreement. 3.3 Day-to-Day Management Responsibility. The following procedure shall be followed to ensure effective day-to-day operation of the Project and cooperation among the City, the Owner and the management agent: 3.3.1 Day-to-day operation of the Project will be under the direct supervision of an on-site management agent, or a resident manager who will report to the management agent. 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. 31 -15- 12853-0092\2729176v3.doc 3.3.3 Owner shall notify the City in writing of the direct phone number and email address of the management agent (so that City may contact the management agent directly), and shall cause the management agent or its personnel to be available on a twenty-four hour a day basis to respond to City inquiries. 3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing of management personnel to manage the Project in a prudent and businesslike manner. In addition, Owner shall provide such security services as may be necessary or appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal opportunity guidelines, without regard to race, religion, color, national origin or sex. All hiring materials will indicate that the Project is an “Equal Opportunity Employer.” Employment grievances, terminations and promotions will be conducted according to personnel policies and procedures which conform with equal opportunity laws. All personnel employed at the Project will receive training specific to Owner’s policies and procedures. 3.5 City Ability to Modify. If the Project is not timely completed in accordance with the Schedule of Performance in the Development Agreement, the City may modify the development standards and to change the General Plan designation and zoning of the Property, and Owner hereby waives any rights they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 3.6 Annual Community Services Fee. Upon the issuance of a Zoning Clearance by the City for occupancy of the first unit of the Project, and on each anniversary thereof, Owner shall pay to City a single community services fee of Eight Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual payments under the City Note (as defined in the Development Agreement).. ARTICLE 4 MAINTENANCE 4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the Project and the Property in good condition and repair and in a prudent and businesslike manner. If any portion of the Project is damaged, restoration of the damaged improvements shall be made by Owner to a condition as good as existed prior to the damage. Owner shall complete promptly and in a good and workmanlike manner any improvements which may now or hereafter be constructed as part of the Project and pay when due all claims for labor performed and material furnished therefor. Owner shall comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions, and orders of any governmental authority now or hereafter affecting the conduct or operation of the Project and of their businesses on the Project or any part thereof or 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 32 -16- 12853-0092\2729176v3.doc 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. 33 -17- 12853-0092\2729176v3.doc 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 34 -18- 12853-0092\2729176v3.doc threatened in the City's reasonable business judgment, then the City shall not declare a default under this subsection. 6.1.6 The Owner shall have voluntarily suspended its business for a period of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed the obligations of Owner in accordance with this Agreement. 6.1.7 Should any default be declared by any lender under any loan document or deed of trust relating to any loan made in connection with the Project or Property, which loan is secured by a deed of trust or other instrument of record, and is not cured within the applicable cure period, if any, granted in the applicable loan documents. 6.2 Liens. 6.2.1 This Agreement shall be senior in priority to any lien or encumbrance on the Property (other than the Development Agreement) and all liens and encumbrances shall be subordinate and subject to this Agreement, regardless of actual date of recordation. The City shall consider in good faith, reasonable modifications of this Agreement typically required by secured lenders and commonly known as “mortgagee protection” provisions; however, in no event shall any such modification shorten the term of this Agreement or contain or require any subordination of provisions of this Agreement. 6.2.2 Owner shall pay and promptly discharge when due, at their cost and expense, all liens, encumbrances and charges upon their respective interests in the Project or the Property, or any part thereof or interest therein (except the lien of any mortgage, deed of trust or other recorded instrument securing any construction or permanent financing for the Project, which shall, in any event, be junior and subordinate to this Agreement), provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than forty-five (45) days after the performance thereof. Owner shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided that within ten (10) days after service of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall deposit with City a bond or other security reasonably satisfactory to City in such amounts as City shall reasonably require, but no more than the amount required to release the lien under California law and provided further that Owner shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged, and shall, in any event, cause such lien, encumbrance or charge to be removed or discharged not later than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and discharge any such lien, encumbrance or charge or to deposit security in accordance with 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 ---- 35 -19- 12853-0092\2729176v3.doc amount or otherwise giving security for such claim, in such manner as is or may be prescribed by law. Owner shall, immediately upon written demand thereof by City, pay to City an amount equal to all costs and expenses incurred by City in connection with the exercise by City of the foregoing right to discharge any such lien, encumbrance or charge. To the extent not paid, all costs and expenses paid by the City shall be a lien on the Property pursuant to Civil Code Section 2881. 6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing, City may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, the non-prevailing party promises to pay to the prevailing party, on demand, the fees and expenses of such attorneys and all other costs of enforcing the obligations secured hereby including without limitation, recording fees, receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred by the prevailing party in connection with the enforcement of this Agreement, whether or not such enforcement includes the filing of a lawsuit. 6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any Event of Default by Owner, City shall be entitled to enforce performance of any obligation of Owner arising under this Agreement and to exercise all rights and powers under this Agreement or any law now or hereafter in force. Additionally, without limiting any of City’s other rights or remedies, upon any leasing of a particular Affordable Unit in violation of this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase by $2 every five (5) years) per day until the violation has been cured (it being understood that if the Affordable Unit is unavailable due to material damage or destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in addition to enforcement costs and any other damages to which City may be entitled, all rent charged by Owner in excess of the rental amounts permitted under this Agreement, with interest thereon from the date paid to Owner until the date paid by Owner to City at the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner stipulates, acknowledges and agrees that the amounts described herein are reasonable estimates of the minimum damages incurred by the City and public as a result of violation(s), and that actual damage would be impractical or impossible to determine with accuracy. No remedy herein conferred upon or reserved to City is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this Agreement to the City may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by the City, and the City may pursue inconsistent remedies. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the Owner to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 36 -20- 12853-0092\2729176v3.doc 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 agent, limited or general partnership, or joint venture between the City and the Owner, or the City and any agents, employees or contractors of the Owner, and the Owner shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement for the operation of the Project. The Owner have and hereby retains the right to exercise full control of employment, direction, compensation and discharge of all persons assisting in the performance of services hereunder. In regards to the on-site operation of the Project, the Owner shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding and all other laws and regulations governing such matters. The Owner each agrees to be solely responsible for its own acts and those of its agents and employees. 7.3 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person the Owner may have employed or with whom the Owner may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the operation of the Project or the Property. 7.4 [INTENTIONALLY OMITTED] 37 -21- 12853-0092\2729176v3.doc 7.5 Limitation of Liability. 7.5.1 No member, official, employee, agent or attorney of the City shall be personally liable to the Owner, or any successor in interest, in the event of any default or breach by the City or for any amount which may become from the City or successor or on any City obligation under the terms of this Agreement. No member, official, employee, attorney, partner or consultant of the Owner shall be personally liable to City in the event of any default or breach by Owner or for any amount which may become due to City or its successor, or on any obligations under the terms of this Agreement or Development Agreement. 7.5.2 Notwithstanding any other provision or obligation to the contrary contained in this Agreement, (i) the liability of Owner under this Agreement to any person or entity, including, but not limited to, City and its successors and assigns, is limited to their interests in the Project and the Property, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this Agreement or any other agreement securing the obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement), shall be rendered against Owner, or their assets (other than their interests in the Project, and this Agreement), in any action or proceeding arising out of this Agreement. 7.6 Force Majeure. Whenever a party required to perform an act under this Agreement by a certain time, said time shall be deemed extended so as to take into account events of force majeure. As used herein “force majeure” shall mean a delay in performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, actions of labor unions, third party litigation, condemnation, requisition, governmental restrictions including, without limitation, inability or delay in obtaining government consents or permits, laws or orders of governmental, civil, military or naval authorities, or any other cause, whether similar or dissimilar to the foregoing, not within the party's control, other than lack of or inability to procure monies to fulfill its commitments or obligations under this Agreement. 7.7 Indemnification of City. Except with respect to claims that arise solely from negligence, fraud or willful misconduct by the City or its officers, employees or agents, Owner shall defend, indemnify and hold City harmless from and against any and all claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from, or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii) any negligence or willful misconduct by Owner or any of their employees, agents, contractors, licensees, invitees or tenants on the Project or the Property. 38 -22- 12853-0092\2729176v3.doc 7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either party shall not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default by the other party. No waiver of any default or breach hereunder shall be implied from any omission to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such wavier shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by the City to or of any act by the Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice the City in the exercise of any right, power, or remedy hereunder. 7.9 Enforcement; Waiver. The City may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the Owner under this Agreement. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as City may deem expedient. In order to entitle the City to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. 7.10 Severability. If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 7.11 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorneys' fees and costs incurred in such action (including, without limitation, all reasonable legal fees incurred in any appeal or in any action to enforce any resulting judgment). 7.12 Binding Upon Successors; Assignment by City. This Agreement, and the exhibits attached hereto, shall run with the land and be binding upon and inure to the benefit of the successors and assigns of each of the parties, and successors in interest to the Project or any portion thereof or interest therein. Any reference in this Agreement to Owner shall be deemed to apply to any successor or assign or successor-in-interest of such party who has acquired any portion of or interest in the Project. Without limiting the 39 -23- 12853-0092\2729176v3.doc foregoing, City may assign this Agreement to the Area Housing Authority of the County of Ventura or any other housing authority created by City or in which City is a member. 7.13 Binding Effect; Successors and Assigns. Owner covenants and agrees for itself, and its successors and assigns and every successor in interest to any portion of or interest in the Project that it and its successors, assigns and successors in interest shall comply with all of the terms, provisions, easements, conditions, covenants, restrictions, liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the Project and Property “run with the land”. 7.14 Transfers. Owner shall provide the City with at least thirty (30) days’ prior written notice of any sale or transfer of the Project or the Property or any portion thereof. The Affordable Units shall at all times remain owned by a single entity. Written notice shall be given to the City of any transfer, but no consent of the City shall be required for any transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof, that directly or indirectly, owns and controls, or partially owns but controls the entity to which the transfer will be made, provided that the City is given a copy of the Assignment and Assumption Agreement and organizational documents that prove the entity is such an affiliate of Danco Homes and has such ownership and control. 7.15 Time of the Essence. In all matters under this Agreement, time is of the essence. 7.16 Complete Understanding of the Parties. The Project Approvals and this Agreement constitute the entire understanding and agreement of the parties with respect to the matters described herein and therein. 7.17 Construction and Interpretation of Agreement. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has reviewed this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions of this Agreement. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized. 7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered into in California and shall be controlled and interpreted by the internal laws of California, without regard to conflict of law provisions, except to the extent federal law applies. Venue for any action brought under this Agreement will be in the Superior Court for the County of Ventura, California or in the United States District Court for the Central District of California. Owner hereby accepts for itself and in respect to its property, generally and unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably consents to the service of process in any action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to Owner at its address for notices 40 -24- 12853-0092\2729176v3.doc pursuant to this Agreement. Nothing contained herein shall affect the right of the City to serve process in any other manner permitted by law. 7.19 Hazardous Materials. 7.19.1 Definitions. The following special definitions shall apply for the purposes of this Section: (a) “Hazardous Materials” shall mean: (1) any “hazardous substance” as defined in Section 101(14) of CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the California Health and Safety Code at such time; (2) any “hazardous water,” “infectious waste” or “hazardous material” as defined in Section 25117, 25117.5 or 25501(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, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence of Hazardous Materials in, on or under the Project or the Property. For the purposes of this Section only, the term “Hazardous Materials” shall not include: (1) construction materials, gardening materials, household products, office supply products, or janitorial supply products customarily used in the construction, ownership, operation, maintenance, or management of residential developments or associated buildings and grounds, or typically used in residential activities, in a manner typical of other residential developments which are comparable to the Project; or (2) certain substances which may 41 -25- 12853-0092\2729176v3.doc contain chemicals listed by the State of California pursuant to Health and Safety Code Section 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Project, including (without limitation) alcoholic beverages, aspirin, tobacco products, and saccharine. (b) Each shall keep and maintain its interest in Project and the Property and each portion thereof in compliance with, and shall not cause or permit its interest in the Project, the Property or any portion thereof to be in violation of, any Hazardous Materials Laws. (c) Upon receiving actual knowledge of the same, the Owner or shall immediately advise the City in writing of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Owner or the Project or the Property pursuant to any applicable Hazardous Materials Laws; (2) any and all claims made or threatened by any third party against the Owner or the Project or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1) and this clause (2) are hereinafter referred to as “Hazardous Materials Claims”); (3) the presence of any Hazardous Materials in, on or under the Project or the Property; or (4) the Owner's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project classified as “borderzone property” under the provisions of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Project or the Property under any Hazardous Materials Laws. 7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably approved by the City) the City, and its City Council members, officers, employees, contractors, agents and attorneys from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorneys' fees and expenses(collectively, a “Loss”), arising directly or indirectly, in whole or in part, out of (1) the failure of the Owner, as applicable, or any other person or entity occupying or present on their respective interest in the Project or Property, to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Project or the Property; (2) the presence in, on or under its interest in the Project or the Property of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from its interest in the Project or the Property; or (3) any activity carried on or undertaken on its interest in the Project or the Property during its ownership thereof, whether by the Owner or any employees, agents, contractors or subcontractors, or any third persons at any time occupying or present on the Project or the Property, in connection with the handling, treatment, `removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Project or the Property. The 42 -26- 12853-0092\2729176v3.doc foregoing indemnity shall further apply to any residual contamination on or under the Project or the Property, or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials on, under, or from the Project or the Property, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. However, the foregoing indemnity shall not extend to the portion of any Loss arising from the gross negligence, fraud or willful misconduct of the City or anyone for whose actions the City is legally liable. This Section shall survive termination of this Agreement. 7.19.4 No Limitation. Owner hereby acknowledge and agree that their duties, obligations and liabilities under this Agreement are in no way limited or otherwise affected by any information the City may have concerning the Project or the Property and/or the presence within the Project or the Property of any Hazardous Materials, whether the City obtained such information from Owner or from its own investigations. 7.20 Insurance Requirements. 7.20.1 Required Coverage. Owner shall maintain and keep in force, at their sole cost and expense, the following insurance for their respective interests in the Project, provided, however, that a Contractor’s liability policy may be used during construction provided it complies with all terms and conditions of this Section: (a) Comprehensive general liability insurance with limits not less than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily injury and property damage, including coverages for contractual liability, personal injury, broad form property damage, products and completed operations. Beginning on the fifth anniversary date of the recordation of this Agreement, and thereafter every five (5) years, the policy limits shall be increased by ten percent (10%) of the then-current limit. (b) Comprehensive automobile liability insurance with limits not less than $2,000,000 for each occurrence, combined single limit for bodily injury and property damage, including coverages for owned, non-owned and hired vehicles. Beginning on the fifth anniversary date of the recordation of this Agreement, and thereafter every five (5) years, the policy limits shall be increased by ten percent (10%) of the then-current limit. (c) Worker's compensation insurance, fidelity bonds and/or such other insurance coverage which is ordinarily and customarily maintained on like kind and sized apartment projects within the City. (d) A policy or policies of insurance against loss or damage to the Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and such other perils ordinarily included in extended coverage casualty insurance policies. In addition, if Owner carries coverage voluntarily for additional causes (such as earthquake, riot, civil commotion or other), such coverage shall be treated in all respects as the policy or policies required to be kept under this paragraph (d) for so long as it continues to 43 -27- 12853-0092\2729176v3.doc voluntarily carry such coverage. All insurance hereunder, except earthquake insurance, shall be maintained in an amount not less than one hundred percent (100%) of the Full Insurable Value of the Project as defined below (such value to include amounts spent for construction of the Project, architectural and engineering fees, and inspection and supervision). “Full Insurable Value of the Project” shall mean the actual replacement cost excluding the cost of excavation, foundation and footings below the ground level of the Project. To ascertain the amount of coverage required, Owner shall cause the Full Insurable Value to be determined from time to time, but in no event less often than once each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable to City and Owner; except that no such appraisals shall be required if the policy is written on a “replacement cost” basis. 7.20.2 General Requirements. The insurance required by this Section shall be provided under an occurrence form, and Owner shall maintain such coverage continuously so long as this Agreement is in force. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be one and one-half times the occurrence limits specified above. All policies shall be with an insurance carrier licensed and admitted to do business in California and rated in Best’s Insurance Guide, or any successor thereto (or if there be none, an organization having a national reputation) as having a “Best’s Rating” of “A” and a “Financial Size Category” of at least “VII” or if such ratings are not then in effect, the equivalent thereof. 7.20.3 Additional Insured. The City shall be named as an additional insured on the general liability insurance covering the Project and the Property with an endorsement form as approved by the City Manager or his/her designee. Comprehensive general liability policies shall also be endorsed to name as additional insureds the City, and its City Council members, officers, agents and employees. All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or intent not to renew to the address established for notices to the City pursuant to Section 7.1 of this Agreement. 7.20.4 Certificates of Insurance. Upon the City's request at any time during the Term of this Agreement, Owner shall provide certificates of insurance, in form and with insurers reasonably acceptable to the City, evidencing compliance with the requirements of this Section, and shall provide complete copies of such insurance policies, including a separate endorsement approved by the City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an additional insured. 7.21 Burden and Benefit. City and Owner hereby declare their understanding and intent of the burden of the covenants set forth herein touching and concerning the Project and the Property. 7.22 Amendments. Changes and modifications to this Agreement shall be made only upon the written mutual consent of the Parties. However, no changes shall be made 44 -28- 12853-0092\2729176v3.doc to this Agreement which would adversely affect any bonds issued under this Project without the written consent of all appropriate parties with respect to any bond issuance. 7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be enforceable by any person, or firm, or corporation, public or private, except the City and Owner and their respective successors and assigns. 7.24 Counterparts. This Agreement may be executed in counterparts, which together will be one agreement. 7.25 Assessment Districts; Covenant and Waivers. Owner agrees to cast affirmative ballots for the increase of any assessment for existing assessment districts for the maintenance of parking and median landscaping, street lighting and parks conferring special benefits, and for the formation of any new assessment district for such purposes, in order to supplement then-existing assessments upon properties within the Project. Owner hereby waives any right they or either of them may have to contest or protest such assessments or any assessment increases. In the event that any such assessment district has insufficient funds for its purposes, then Owner shall pay the funds that the assessment district requires to the assessment district within five (5) business days after written demand from the assessment district from time to time. ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT PROVISIONS The term of the Development Agreement is for seven (7) years, while the term of this Agreement is much longer (as described in the definition of “Term” in Section 1.1 above). The following provisions of the Development Agreement are hereby incorporated herein to clarify that they survive the expiration of the Development Agreement (but, except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier termination of the Development Agreement due to a default by the “Developer” thereunder) and continue until the expiration (or earlier termination) of this Agreement, it being understood that all of the rights and benefits of Owner under the following (except for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early termination of the Development Agreement due to a default by Owner thereunder. 8.1 No Other Separate Conveyance of Affordable Units. Owner and its successors in interest shall not convey any unit or any portion of the Project separately, but shall only convey them the entire Project concurrently and to the same purchaser, and then only to a purchaser reasonably approved in writing by City (which will consider the reputation and experience of the purchaser in owning and operating affordable rental units). 8.2 Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 45 -29- 12853-0092\2729176v3.doc 8.2.1 Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and the Development Agreement. 8.2.2 Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and the Development Agreement. 8.2.3 Building Standards. All construction on the Property shall adhere to all City building codes in effect at the time the plan check or permit is approved per Title 15 of the Moorpark Municipal Code and to any federal or state building requirements that are then in effect (collectively "the Building Codes"). 8.2.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and the Development Agreement. 8.3 Densities Allowed for Development. Owner agrees that densities vested and incentives and concessions received in the Project Approvals include all densities available as density bonuses and all incentives and concessions to which Developer is entitled under the Moorpark Municipal Code, Government Code Sections 65915 through 65917.5 or both Owner shall not be entitled to further density bonuses or incentives or concessions and further agrees that its execution of and compliance with this Agreement is in consideration for the density bonus obtained through the Project Approvals that is greater than would otherwise be available. Residential Planned Development Permit No. 2012-02, including the special conditions that incorporate and include all of the requirements set forth in this Agreement are part of the Project conditions of approval and not merely contractual in nature. 8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first building permit or the approval of any final map for the Project: (a) Owner shall pay the City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b) either two Assessment Districts (one fully funded and a second “back-up” district) or one Assessment District containing two zones (one zone to be fully funded and the other to be a back up zone), as determined by the City at the City’s discretion, shall be formed that includes the Property. The first District out of the two Districts or the first zone of the one District, whichever is applicable, shall be for the purposes of funding future costs for the maintenance landscaping and irrigation of the landscaped area above the retaining wall along the southern perimeter of the Property and the maintenance of the storm water quality basin and drainage improvements, including basin landscaping and irrigation. The second District or second zone of the District, whichever is applicable, shall be for the maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water basin access drive and the emergency access drive. It shall be the intent of the City to approve the required assessment each year, but to only levy that portion of the assessment necessary to recover any past City costs or any anticipated City costs for the 46 -30- 12853-0092\2729176v3.doc 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. 47 -31- 12853-0092\2729176v3.doc 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 48 -32- 12853-0092\2729176v3.doc 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. 49 -33- 12853-0092\2729176v3.doc 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. 50 -0- 12853-0018\2041772v2.doc 12853-0092\2729176v3.doc EXHIBIT NO. 1 TO AFFORDABLE HOUSING AGREEMENT LEGAL DESCRIPTION THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS: ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document No. 20050721-0178764 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book 5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in said City, County and State as shown on Map filed in Book 5, Page 37 of said Miscellaneous Records (maps). TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No. 200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-0108315 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder, lying northerly of the following described line; BEGINNING at a point in east line of Parcel lA of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof; 1st Thence, departing said east line South 89°38'32"West 752.05 feet; 2nd Thence, South 27°20'34West 36.75 feet; 3rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel 1A. 51 -0- 12853-0092\2729176v3.doc 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”. 52 -1- 12853-0092\2729176v3.doc 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. 53 -2- 12853-0092\2729176v3.doc 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, respectively, this form must be completed based upon the current income of the occupants. 54 -3- 12853-0092\2729176v3.doc 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 be used as deductions in determining net income. An allowance for depreciation is permitted only as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an investment will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested by the family. Where the family has net family assets in excess of $5,000, annual income shall include the greater of the actual income derived from all net family assets or a percentage of the value of such assets based on the current passbook savings rate. (d) the full amount of periodic payments received from Social Security, annuities, insurance policies, retirement funds, pensions, disability or death benefits, and other similar types of periodic receipts, including any lump sum amount except deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts; (e) payments in lieu of earnings, such as unemployment and disability compensation, workers' compensation and severance pay; (f) welfare assistance. If the welfare assistance payment includes an amount specifically designated for shelter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelter and utilities, the amount of welfare assistance income to be included as income shall consist of: (1) the amount of the allowance or grant exclusive of the amount specifically designated for shelter or utilities; plus (2) the maximum amount that the welfare assistance agency could in fact allow the family for shelter and utilities. If the family’s welfare assistance is ratably reduced form the standard of need by applying a percentage, the amount calculated under this paragraph shall be the amount resulting from one application of the percentage; (g) periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling; 55 -4- 12853-0092\2729176v3.doc (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; 56 -5- 12853-0092\2729176v3.doc (5) incremental earnings and benefits resulting to any family member from participation in qualifying State or local employment training programs (including training programs not affiliated with a local government) and training of a family member as resident management staff. Amounts excluded by this provision must be received under employment training programs with clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment training program. (i) temporary, nonrecurring or sporadic income (including gifts); (j) reparation payments paid by a foreign government pursuant to claims filed under the laws of that government by persons who were persecuted during the Nazi era; (k) earnings in excess of $480 for each full-term student 18 years old or older (excluding the head of household and spouse); (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 57 -6- 12853-0092\2729176v3.doc (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $5,000? __________Yes __________No (d) If the answer to (c) above is yes, state: (1) the combined total value of all such assets: $____________________ (2) the amount of income expected to be derived from such assets in the 12- month period beginning on the date of initial occupancy in the unit that you propose to rent: $_______________, and (3) the amount of such income, if any, that was included in item 6 above: $_______________ 8. Are all of the individuals who propose to reside in the unit full-time students*? __________Yes __________No *A full-time student is an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional or farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. (a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return? __________Yes __________No 9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the "Owner"), has any family relationship to the Owner; or owns directly or indirectly any interest in the Owner. For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or Trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual. 10. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein is true, correct and complete and based upon information I/we deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 58 -7- 12853-0092\2729176v3.doc 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] 59 -8- 12853-0092\2729176v3.doc 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 60 -9- 12853-0092\2729176v3.doc 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) $ 61 -10- 12853-0092\2729176v3.doc INCOME VERIFICATION (FOR EMPLOYED PERSONS) The undersigned employee has applied for a rental unit located in a project financed under the Multifamily Revenue Bond Program for persons of low and very low income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee’s current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. EMPLOYER Annual Wages (Gross) _________________ Overtime _________________ Bonuses _________________ Commissions _____________ Current Base Pay _____________ Other Income __________________ Avg. Total Hours Worked Weekly __________________ Total Current Income_________________ Year-to-Date Income_________________ Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other ____________ Do you anticipate an increase in the base pay over the next 12 months? Yes No If so, please indicate the amount of anticipated increase $__________ per ________ start date: ________ NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the purpose of determining income status. This form does not constitute a promise by the employer to the employee of guaranteed wages, bonuses or raises. I hereby certify that the statements above are true and complete to the best of my knowledge. ___________________________________________________________________ Date Employer ___________________________________________________________________ Signature Title ___________________________________________________________________ Employer’s Address Employer’s Phone Number 62 -11- 12853-0092\2729176v3.doc APPLICANT I hereby grant you permission to disclose my income to ________________________________ in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the Multifamily Revenue Bond Program. ______________________________________ Date ______________________________________________________________________ Print Name (Resident) Signature (Resident) Please send to: ________________________________ (Management Co. or Owner) ________________________________ ________________________________ 63 -12- 12853-0092\2729176v3.doc INCOME VERIFICATION (for self-employed persons) I hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge. ______________________________________________________________ Signature Date 64 -13- 12853-0092\2729176v3.doc 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 $____________________ 65 -14- 12853-0092\2729176v3.doc 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: _______________________________________ _______________________________________ _______________________________________ _______________________________________ 66 -15- 12853-0092\2729176v3.doc 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:__________________________________________________________ 67 -16- 12853-0092\2729176v3.doc 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: ________________________________________________________ ________________________________________________________ ________________________________________________________ 68 -17- 12853-0092\2729176v3.doc 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 69 -18- 12853-0092\2729176v3.doc 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 #: _______________ 70 -19- 12853-0092\2729176v3.doc 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:______________________________ 71 -0- 12853-0092\2729176v3.doc EXHIBIT NO. 4 TO AFFORDABLE HOUSING AGREEMENT CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE FOR THE [MONTH/QUARTER] ENDING _______ The undersigned, ___________________________, as the authorized representative of (the “Owner”), has read and is thoroughly familiar with the provisions of the Affordable Housing Agreement by and between Danco Communites (“Developer”) and the City of the City of Moorpark (the “City”), dated as of ____________________, 20__. As of the date of this Certificate, the following numbers of completed residential Units in the Project (i) are occupied, or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date an Extremely Low Income Tenant or Very Low Income Tenant vacated such Unit, as indicated: Occupied by Extremely Low Income Tenants: Number of Units: ________________________ Occupied by Very Low Income Tenants: Number of Units: Occupied by Low Income Tenants: Number of Units: Held vacant for occupancy continuously since last occupied by Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants. Vacant Units Number: _____________________ Occupied Units Number: _______________________ Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants who commenced occupancy of Units during the preceding [month/quarter]: Extremely Low Income: Units Nos.: ______________________________________________________ 72 -1- 12853-0092\2729176v3.doc Very Low Income: Units Nos.: ______________________________________________________ Low Income: Units Nos.: ______________________________________________________ Attached is a separate sheet (the “Bond Program Report”) listing, among other items, the following information for each apartment Unit in the Project: the number of each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and number of bedrooms of each Unit. It also indicates which Units are occupied by Extremely Low Income Tenants, Low Income Tenants and Very Low Income Tenants and which Units became Extremely Low Income Units, Low Income Units and Very Low Income Units during the preceding [month/quarter]. The information contained thereon is true and accurate. The undersigned hereby certifies that (1) a review of the activities of the Owner during such [month/quarter] and of Owner’s performance under the Affordable Housing Agreement among Owner and the City, has been made under the supervision of the undersigned; and (2) to the best of the knowledge of the undersigned, based on the review described in clause (1) hereof, the Owner is not in default under any of the terms and provisions of the above documents [or describe the nature of any default in detail and set forth the measures being taken to remedy such default: .] 73 -0- 12853-0092\2729176v3.doc EXHIBIT NO. 5 TO AFFORDABLE HOUSING AGREEMENT LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY (Attached.) 74 -1- 12853-0092\2729176v3.doc EXHIBIT “B” FORM OF OFFSITE IMPROVEMENT PERFORMANCE AND PAYMENT BONDS (Exhibit K of First Amendment) (Attached.) 75 -2- 12853-0092\2729176v3.doc 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 $400,000 in connection with that Work (“Payment”); WHEREAS, the Work and Payment to be performed or made by PRINCIPAL is more particularly set forth in that certain Second Amendment to the Development Agreement dated __________2022, (hereinafter the “Agreement”); and WHEREAS, the Agreement is hereby referred to and incorporated herein by this reference; and WHEREAS, PRINCIPAL or its contractor is required by the Agreement to provide a good and sufficient bond for performance of the Agreement, and to guarantee and warranty the Work constructed thereunder and the Payment. NOW, THEREFORE, we the undersigned, Essex Moorpark Owner, L.P., as PRINCIPAL and______________, a corporation organized and existing under the laws of the State of _______ and duly authorized to transact business under the laws of the State of California, as SURETY, are held and firmly bound unto the CITY in the sum of __________________________ ($_____________), 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 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 76 -3- 12853-0092\2729176v3.doc 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 SURETY 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 successors 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 reasonable 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 and 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. 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 such change, extension of time, alteration or addition to the terms of the Agreement or to the Work. 77 -4- 12853-0092\2729176v3.doc IN WITNESS WHEREOF, we have hereto set our hands and seals this _____ day on ______________________________________, 20___. PRINCIPAL By: President SURETY By: Attorney-in-Fact 78 -5- 12853-0092\2729176v3.doc 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 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) 79 -6- 12853-0092\2729176v3.doc 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. 80 -7- 12853-0092\2729176v3.doc 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 $400,000 in connection with that Work (“Payment”); WHEREAS, the Work and Payment to be performed or made by PRINCIPAL is more particularly set forth in that certain Second Amendment to the Development Agreement dated _________, 2022 (hereinafter the “Agreement”); and WHEREAS, PRINCIPAL or its contractor is required to furnish a bond in connection with the Agreement providing that if __________ or any of his or its contractors shall fail to pay for any materials, provisions, or other supplies, or terms used in, upon, for or about the performance of the Work contracted to be done, or for any work or labor done thereon of any kind, or for amounts due under the provisions of Title 3 (Commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, with respect to such work or labor, that the SURETY on this bond will pay the same together with a reasonable attorney’s fee in case suit is brought on the bond. NOW, THEREFORE, we the undersigned, as __________________ PRINCIPAL and __________________, a corporation organized and existing under the laws of the State of_________________ and duly authorized to transact business under the laws of the State of California, as SURETY, are held and firmly bound unto the CITY and to any and all material men, persons, companies or corporations furnishing materials, provisions, and other supplies used in, upon, for or about the performance of the said Work, and all persons, companies or corporations renting or hiring teams, or implements or machinery, for or contributing to said Work to be done, and all persons performing work or labor upon the same and all persons supplying both work and materials as aforesaid, the sum of ($_____________), 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 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 SURETY will pay the same in or to, an amount not exceeding the sum specified herein. 81 -8- 12853-0092\2729176v3.doc 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 subcontractors 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 bond, 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 benefit 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 82 -9- 12853-0092\2729176v3.doc 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) 83 -10- 12853-0092\2729176v3.doc 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. 84 . Recordin g Requested By And When Recorded Re turn to: C ITY CLE RK C ITY O F MOORPARK 7 99 Moorpark Avenue M oorpa rk, Cal ifornia 93021 EX EMPT FROM R E CORDER'S FEES Pursuan t to Govern ment Cod e § 6103 a n d§ 2 7 383 DEVELOPMENT AGREEMENT by a nd b e tween the CITY OF MOORPARK and ESSEX MOORPARK OWNER, L.P. HIIIIWlll lllllllllllllllff ~Ill I l 1I f I 20170417-00050720-0 1/137 Ventura CoUl'\ty CJert •nd Reoorde r '1RRK A. l UNN 04/17/2017 02 :20 :53 PN 11 89 BGS $.00 VA 85 DEVIELOPMENT AG :REEMENiT This Development Ag reement {"'the Agreement'') is made and entered 1iinto on April 17, 2017, by and between the CITY OF MOORPARK, a municipal corporation (referred to her"0inafter .as "City"} and ESSEX MOORPARK OWNER, L.P., the owner of real property within the City of Moorpark generally referred to as Residential Planned !Development Pennrt 2012-02 (referred to hereinafter ·nd ividualll'y as "Developer''} .. City and Dev-eloper are ref,erred to her,einafter individuaHy as 'Party11 and collectively as "Partiies ." Capitalized terms us,ed in this Agreement but not defined herein shall have the meanings g·ven such terms in the Affordable Mousing Agreement (defined in Section 1.5 her:eof). In consideration of the mutual covenants and agreements contai:ned in thi's Agr,eement, Cdy and Developer agr-ee as fo ,Hows: - 1. Recitals. lhis-Agr-eement is made with respect to the following facts and for the followi ng purposes, each of which is acknowledged as true .and correct by the Parties: 1.1 Pursuant to, Gove nment Code Section 16.5864 et se_g. and !Moorpark MunicipaJI Code Chapter 15,.40, City is authorized to •enter 1into a binding contractual agreement with a y person having a l'egal or equitable interest in real property within its boundaries for the deve:lopment of such property in nrder to es.tabli :sh oertarnty in the development process .. 1.2 Dev-eloper is ~he owner in fee simple of certa·n r,eal property in the City of Moo:rpar'.lk., as more specifically described: by the lega l ,description set forth in Exhibit A,, which exwfbit is attaohed hereto and incorporated herein by this re,ferenoe (the "Property''). 1.8 Prior to, and in connection with , the approval of this Agreement , the City Counoil reviewed the project to be deve oped pursuant to this Agreement as required by the California Environmental Quality Act ("CEQA. ~) The Cly Council found that the Mitiga~ed Negative Decl:a.ratlon (''MNDt,} and Mitigation Monitoring and Reporting Pr-og-ram ("the. MMRP"') adopted by ResoluUon No. 2007 ~2611 to be applicable to this Agreement and the Projie-ct Ap,pmva:ls as defined in Sect:io,n 1.4 of this Agreement and that no ,changes or new information w'thin ·the scope of St.ate CEQA Guidelines Sectii:on 15162 requi res the preparation of a new -or subsequent ,environmental document in connection with the approval of this Agreement . 1.4 General Plan Amendment No . 2,004-05-("GPA .2004-05 '"}, Zone Change No . 2004-'04 ,( 1'ZC 2004-04,''); and' Residential Planned Development Permit No . 2012-02 ("RPO 2012 -02.' }, inc:luding all subsequently approved modifications and permit adjustments to RP □ 2012-02 and all amendments thereto (co :l:lectirvery ~ he Project Approvals;'; individual liy "a Project Approval") pmvide for the deveJnpment of the Property with a 200- 86 unit residential apartment compl 'ex and the construction of certain off-site ·mprovements in connection therewith ("the Project11 ). 1.5 The Proj:ect sha l!I include at least f ifty (50) Affordabl:e Units rented to individuals. and families whose incomes do not exceed those specified by the Affordable Housing Agreement •executed by the Developer in favor of the· City contemporaneously with this Agreement (the Affordable Housing Agreement") at rents no ,greater than those set forth in the Affordable Hous·n,g Agreement (the "Afforoable· Units '"}. The Project shal l. be restr"cted and encumbered by the Affordable Housing Agre-ement The City and Developer acknowledge and agree that the Dev,e lo per may apply for, qualify, develop and finance the Project in a manner that qualifies for tax exempt bond financing and federal low income ho,us.ing tax credits . For that purpose, the .Developer may seek City approval fo r an air rights subdivision of the Proj ect into separate parcels so that the parcels containing the 1'6 Very Low rncome Units and the 24 Low lnoome Units required by the Affordable Housing Agreement can be conveyed to and owned by one ,owner separ.ate from the ownership of the other rental Units In the Project. but the Very Low Income Units and the Low Income UnHs cannot be sold to or owned by multiple owners (i.e .. , the Very Low Income Units and the ow Income Un its must be owned by a single owner at all times. exoept that the owner of market rate Units may also own ten ,(10) Moderate Income Units which willl be rented as Low ~ncome Units until the last to end of the Compl .iance P,eriod and Extended Use Period or Qualified Project Period). It is anticipated that if tax exempt bond financing and l'ow income housing tax cfedits are used in connection with the Project the Very Low Income Un ts, ~he Low Income Unitts and the Moderate UnU? will be rented and occupied in acco.rdance, wJth the restrictions set forth in the Affordable Housing Agreement. 1:.16 Cly and Developer acl<now1edge and agree tha t the previous Deve·lopment Agr-eement No. 2004-03 for the Property, approved by the City Council on July 18, 2007 by Ordinance No. 355, did not take effect and was not reoorded because the Developer did not execute, it. City and Deve lbper also acJknowledge and agree that by the enabli'ng ordinanoe approving this new Agreement, the City's previous approval of Development Agreement No. 2004-03 pursuant to Ordinanoe No .. 355 is rescinded and that resciss fo n wil ake effect upon the date the enabling ordinance for this Agreement under Government Code Section 36937 ("Enabling Ordinanoe") becomes. effective ("Operative Date "). 1. 7 City and Developer ac:knowledg:e and agree that the approva!I of ResidenUal Planned Development Pe rmit No . 2004--06 for the Property, approved by the City Council on July 18, 2007 by ResoluUon No. 2007- 2612 , exp1ired due to lack of Pro,ject inauguration by Developer. 12353--00 8\20443:26or1 .doc 87 1.8 By this Agreement, City d'esires to obtain the binding agreement of Developer to develop the Property in accordance wJith the Project Approvals and this Agreement. In consfderation thereof City agrees to limit the future exercise of oertaJn of its governmental and proprietary powers to the extent spec·fied in this Agreement 1.9 By this Agre,ement , Developer desires to obtain the binding agreement of City to permit 'the deve .lopment of the Property in acc-ordance with the Project Appmvals and this Agreement. In consideration thereof, Developer agrees to waive its rights to legally chaUenge the rrnil.abons and condirtions imposed upon the development of the Property pursuant to the Project ApprovaI!s and this Agreement and to ,pmv,ide the public benefits and improv,ernents specified in this Agreement. 1.1 0 City and Developer acknowledge and agree tha the consideration that is to be exchang,ed pursuant to this Agreement is fair, just and reasonable, and tha this Agreement is consistent with the, General Plan of City, as currently amended. 1 .11 On June 4 , 2013, the Planning Comm~ssion commenced a duly noticed public hearing on this A.gr-e·ement, and at the conclusion of the hearing on June 4 , 2013, recommended approvaf of thi 'S Agreement. 1.12 On March 1, 2017 , the Gnty Council o City ("City Council") commenced a duly noti'ced public hearing 011 this Agreement, and foHowing the conclusion of the hearing, appmved the Agreement by adoption of OrcHnance No . 443 ('1he Enabling Ordinance") on Mamh 15, 2017. 2 . P1roperty Subiect To This. Agreement. AU of tile Property shaU be subject to this Agreement. The Property may also be referred o hereinafter as "the site" or 'the Project". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to , each Party a 1nd each sucoess,ive successor in interest thereto (subject to Section 3.4 befow) and constitute covenants that run wiith the Property. Whenever the terms 'City" and "Developer' are used herein such terms shaH indude every successive· successor in mterest thereto. 3 .1 Constructive Notice and Accepta11ce. Every pe ;r.son who acqiuire,s any ~i:ght,, title or interest in or to any portion of ~he Property shall be conclusively deemed to have oonsented and agreed to be bound by this Agreement, whether or not any reference to '~he Agreement is conta ned in the instrument by whfch such p-e rson aoq ui red such 1right j trrtle or interest, subject to Section 3.4 below. 3.2 Conveyance of Very Low Income Units and ow fnoome Units. Upon teoordation of an approved final map under SecUon 7 . 1 below creating -3- 12853-00 8J204 43Z6v 1 ,doc 88 leg.al air irigh s parcels for the Property and delivery of reasonable evidence to the City Manager showing that the transferee is partly ,owned (directliy or .indirectly) and is controJlled (directly or indirectly) by Developer, Developer may convey the subdivided portion of the Property containing such Ve,ry Low Income and Low Income Units to a single ,entity so owned and so controned by 0eveiloper (the "Affordable Housing Owner'') subject to the Affordable Housing Agreement between City and Developer, and this Agreement shall inure to the benefit of and be binding upon the Affordable Housing Owner. Developer and Affo,rdable Housing Owner shall not convey fee· title to such Very Low Income Units or the Low Income U11iits to any other person or entity. Dev,e·loper shall .r,eimburse City within ten (10) days after written demand (wirth an exp lanation of the costs) for all ,co·sts incurred by City in eval'uating the conveyance to the Affordable Housing, Owner ,and any subsequent permitted ,conveyance by the Affordable Housing Owner. 3.3 No Other Separate Conveyanoe of V,ery Low lnoome Units and Low ncome U11Us. After the ini'tia ll conveyance by Devel:oper to Affordable Housing Owner of Very low Income Un 1i:ts and , ow Income Units, Developer and the Affordable Housing Owner and their successors in inter,est shal l not convey their respecfve portiions of the Property se,pal'.ately. but shall only convey them concurrently and to the same purchaser, only to a purchaser reasonably appr:oved in writing by City (whfch will consf:der the reputation and expenence of the purchaser in owning and operating affordable rental units). As a condition to the initial conveyance by Develope:r to Affordable Housing Owner of Very Low lncom:e Un"ts and Low In.come Units, Developer and Affordable Housing Owner sha I execute , acknowledge and record (0 a separate agreement (i.e., a covenant and agreement to, ho,ld property as one par-eel) impoS'ing the foregoing restriction on the Property, which shall be subject to the written approval of City, and (ii) "conditions, covenants and rcestriict1ons" for the Affordable Units and he remainder of the Project ("CC&R's"). which shaH also be subject to the written approval of City. Such separate agreement: and CC&R's shall be senior to any and all deeds of trust and other liens ( e~cept property taxes and assessments not yet due}, 3.4 Re,le.ase Upon Subsequent Transfer. Upon the sale or transfer of De:veloper's and Affordable Housing Owner's interests in the Property to a single purchaser ( or any such purchas.er or subsequent purcha.ser's sale ,of the enllire Property), Developer and Affordable Housing Owner,, or any such sub.sequent purchaser (as applicabl'e), sha I be rel ,eased from its obligations hereunder with respect to the IPmperty subsequent to the ,effective date of the sale or transfer, prov,i:ded that ~he seUer or transferor {i) was not i n brieach of this Agreement at the time of the sal 'e or transfer and (ii) prior to the sale or transfer, delivered to City a wr1itten assumption agreement, duly executed by the purchaser or transferee and notarized by .a notary publ 1ic , whereby the pur-chaser e·xpr,e,ss 'l.y assumes the obligations -4- 12853-00'IS\2044 3:26'1/ .doc 89 under this Agreement with respect to the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser o r transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sa le or tra nsfer, except as otherwise provided i n this Agreement. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 5 . 4 .1 Permitted Uses. T he pe rmitted and conditionally permitted uses of th e Property shall be li mited to those that are allowed by the Project App rova ls and this Agreement. 4 .2 Development Standards. All design and development standards, including but not li mited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agre ement. 4.3 Building St andards. 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 bu ildi ng requ irements that are then in effect (collect ively "the Building Codes"). 4.4 Reservations and Dedications. All reservat ions and dedications of land fo r public purposes that are applicable to th e Property are set forth in the Project Approva ls and this Agreement. Vesting of Development Rights . 5.1 Timing o f Development. Developer shall comp ly with the Schedule of Performance attached hereto as Schedule 1, subject to Excused Delays (as defined in Section 10) and as amended from time to time and approved in writing by the City Council. No future amendment of any existing City ordinance or resolut ion, or future adoption of any ord inance, reso lution or other action, that purports to limit the rate or ti ming of development over time or a lter the sequencing of development phases, whether adopted or imposed by the City Counci l o r through the initiative or referendum process, shall apply to th e Property provided the Property is developed in accordance wit h the Project Approvals and this Agreement. Nothing in th is section shall be construed to l imit City's r ight to ensure that Deve loper timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and th i s Agreement. 12853·0018\2044326v1 -~OC -5-90 5.2 Amendment of Project Anptovals. N'o amendment of any of the Project Approvals,, whether adopted or approved by the City Council or throt1gh the ini:l11ative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in wriiting to the amendment 5.3 ~ssuance of Sub_seguent Approvals .. Applications for land use approvals, entitlements and permits, 'nduding without limitation subdivision maps (~ ·tentative vesting: tentaUve, parcel , vesting parcel , and final maps)', subdivision improvement agreements and other agreements relating to the Proj:ed, lot line adjustments, preliiminary and fmal planned development permits, use permits, design review approvals (e .g. site p,ans , ernhitectural pl·ans and fandscaping plans}, encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project {collective.ly ''the Subsequent Approvals'1; individually 'a Subsequent Approvalr1) shall be e:onsiste,nt with the Project Approvals and this .Agreement For purposes of this Agreement, Subsequent Approvals do not indude buildi1ng permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpank General Pl'an , the Moorpark Municipal Cod ,e and other City ordinances , resolutions, rul ,es. regulations, polioles., standards and requirements as most recen:tly .adopted m approved by the City Council o.r through the initiative or referendum p 1rocess and in effect at the, time that the application for the Subsequent Approval' ,is deemed complete by Cly {coHectively· ncity laws.11 ), ,e;xcept C.ity Laws that: (a) change any permitted or ,conditiona llly permitted uses of the Property from what is allowed by the Project Approvals ; (b) lirnit or reduce, the density or .intensity of the Proj>ect , or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improv,ements fmm what is aHowed by the Project Approva s. (c) limit or con rol the ,rate, timing,, phas 'ng or sequencing of the appro,val, development ,or constructi:on of al I or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Piroperty covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of constructi'on ; ( d) are not uniformly appli ed on a City=wid e basis to a II substa ntia Hy similar types of development projects or to all propertJes with similar land use designations; (e) control res,idential rents; -6.,. 1285.J.-0018\2-044 326v1 .doc 91 (f) proh ibit or regulate development on slopes with grades greater than 20 percent, induding without limitation Moorpark Municipa:I Code Chapter 17.38 or any success;or thereto, within the Property; or (g) modify the land use from what is permitted' by the C:ftty's General Plan Land Use Element at the Operative Date of this Ag.reement. or that prohibits or restricts the establishment or expansion of urban servi:ces including but not !limited to community sewer systems to the Project. 5.4 [INTENTIONALLY OMITTED] 5.5 Modification of Approvals. Throughout the term of this Agreement, Deve,loper shalll have the right at its election and without risk to or waiver of any rig ht that is vested in it pursuant to th is section, to apply to C irty for modifications to Project Approvals and Subsequent Approvals . The approval or conditional approval of any such modification shall not require an amendment to thiis Agreement, provided that, in addition to any other findiing ,s that may be required in order to approve or oondi:tionallt approve the, modificatiion, a finding is made that the modification is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of build:ings or reservations and dedications as conta.·ned 1in the Project Approvals. 5.6 Issuance of Building Permits. No Building Permit shall be unreasonably withheld or delayed from Developer. In additfon , no Final Building Permit final inspection or Certificate of Occupancy will be unreasonably withheld or delayed from Developer if all infrastructure required by the Project Approvals ., Subsequent Approvals, and this Agr,eement to serve the portion of the Property covered by the Final Building Permit is in place or rs. scheduled to be in place prior to completion of construction and all of the other r:elevant provisions of the PmJect Approvals, Subsequent Approvals and this Agreement have been satisfied . Consistent with section 5.1 of this Agreement1. in no event sha'II building permits be allocated on any annua f numeric.a l basis or on any arbitrary allocation basis. 6. Developer Agreements. Note: Certain f,ees payable by Dev,e1lopment under this Section 6 ar,e. also set forth and cross -referenced on Schedule 2 attached hereto. 6.1 De,ye!lopment as a Residential Project. Developer shal1I ,comply with (i) this Agreement, (ii) the Project Approvals, (iii) alll Subsequent Approvals for which it was the applicant or a successor in Interest to the applicant and (iv) the MMRP of the M ND and any subsequent or supplemental environmental actions . Developer agrees not to apply for any non- residential uses on the Property. The c,lubhouse and leasing offices are considered to be part of the residential uses. -7- 12853,00 18\2044326\11 .doc 92 6.2 Condit ion of Dedicated or Conveyed Property. All lands and interests in land dedicated to City shall be free and c lear of liens and encumbrances other than easements or restrictions that do not prec lude o r interfere with use of the land or i nte rest fo r its intended pu rpose , as reasonably determined by City. 6.3 Develop ment Fee Per Unit. As a condition of the issuance of a bu ild ing pe rmit for eac h residentia l un it with in the bounda ries of the Property, Deve loper shall pay City a one-time deve lopment fee as described herein {the "Deve lopment Fee "). The Deve lopment Fee may be expended by City in its sole and unfettered discretion. The amount of the Development Fee shall be Eight Thousand Fo ur Hund red Dollars ($8,400.00) per residential un it. If not pa id by January 1, 2019, th e fee shall be ad j usted annually commenc ing January 1, 2019 by the larger increase of a) orb) as follows : (a) T he Consumer Price Index (CPI) inc rease shall be determined by using the information provided by the U.S. Department of Labor, Bu re au of Labo r Stat istics , for all urban consumers within the Los Angeles /Riverside/Orange County metropolitan area during the prior yea r. The calculat ion shall be made us ing the month of October ove r the prio r October. (b) The ca lcu lation shall be made to reflect the change in the Ca ltrans Highway Bid Price Index fo r Se lected Cal ifornia Construction Items for the twe lve (12) month period avai lable on Decembe r 31 of the precedi ng year. In the event there is a decrease in both of the referenced Indices for any ann ua l index ing, the Deve lopment Fee shall re main at its then current amount until such time as the next subsequent annual indexing wh ich resu lts in an increase . 6.4 Traffic Mitigat ion Fee. As a cond ition of the issuance of building perm it for each res idential use w ithin the boun daries of the Pro perty, Developer shall pay City a one-time traffic mitigation fee as described herein ("C itywide Traffic Fee"). The Citywide Traffic Fee may be ex pended by Cit y in it s so le and unfettered discretion . The amount of the Citywide T raffic Fee shall be Eight Thousand Five Hundred Twenty-seven Dollars ($8 ,527.00) per residen ti al unit. If not paid by J anuary 1, 2019, then on January 1, 2019, and annually the re after unti l pa id, the contri bution amount shall be increased to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twe lve ( 12) month pe riod available on Decembe r 31 of the preceding year ("annua l indexing"). In the event the re is a decrease in th e referenced Inde x for any annua l i ndex ing , the current amount of the fee shall remain until such time as the next subsequent annual index ing which resu lts in an increase. -8- 12853-0018\2044326v1 .doc 93 6.5 [INTENT IONALLY OMITTED.] 6.6 Process i ng Fees . On the Operat ive Date (defined in Secti on 1.6 above), Developer shall pay all outstand i ng City process ing costs related to preparation of this Ag reeme nt, the Project Approva ls, the MND . 6 . 7 Park Fees. Prior to the issuance of the build i ng permit for each res ident ial dwelling un it within the Property , Developer shall pay a one-ti me fee in lieu of the dedication of park land and related improvements ("Park Fee"). The amount of the Park Fee shall be Eight Thousand Fou r Hundred Dollars ($8,400.00) for each residential dwell ing un it within the Property. If the Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted annually com menc ing January 1, 2019 by the larger increase of a) orb) as follows: (a) The CPI increase shall be determined by using the information prov ided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consume rs with in the Los Ange les/R ive rside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of October ove r the prio r October. (b) The ca lculat ion shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected Cal ifo rnia Const ruction Ite ms for the twelve (12 ) month period available on December 31 of the preceding year. In the event there is a dec rease in both of the referenced Indices for any annual indexing, the Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing wh ich results in an increase . Developer agrees that the above-desc ribed payments shall be deemed to sa tisfy the parkland dedication re quirement set forth at California Government Code Section 66477 et seq. fo r the Property. Developer also unde rstands that because the above-described payments shall be deemed to satisfy applicab le parkland dedication require ments, a public tra il through the Property shall not be required. 6.8 [I NTENTIONA LL Y OMI TTE D.] 6.9 Densities Allowed fo r Deve lop ment. Developer agrees that dens ities vested and i ncent ives and concess ions received in the Project Approvals include all densi ties ava ilable as density bonuses and all incentives and concessions to which Developer is ent itled under the Moorpark Municipal Code , Government Code Sect ions 659 15 th rough 659 17 .5 or both; Develop er shall not be entitled to further density bonuses or incentives or concess ions and further agrees, in cons ideration for the dens ity bo nus -9- 12853-0018\2044326v1 .dOc 94 obtained through th e Project Approva ls that is g reater than wou ld otherwise be available, to: (i) execute, acknowledge and record against the Property an Affordab le Housing Agreement in the form attached hereto as Exhibit F substantially concurrently with the recording of th is Agreement and ensure that the Affordable Housing Agreement is not subject or subord inate to any l iens (except for property taxes and assessments not yet due); and (ii) comply with the terms thereof, wh ich a re incorporat ed herein by reference , during the term of this Agreement ( after which the Affordable Housing Agreement shall remain in effect for its stated term). Resident ia l Plann ed Development Permit No. 2012-02, including the special conditions that i ncorporate and include all of the requi rements set fort h in the Affordable Housing Agreement are part of the Project conditions of app rova l and not merely contractual in nature . 6.10 Affordable Unit Priori ty Leasing. Developer agrees to the greatest extent perm itted by state and federal law to grant priority to the Affordab le Un it s to eligible City of Moorpark res idents to the extent it does not (i) jeopardize Developer's rights pursuant to this Agreement or the Project Approvals, or (ii) jeopardize or materially affect any City-issued bond financ ing fo r the Project obtained by Developer. 6.11 Bond Issuance Costs. In the event C ity issues bonds to provide any financ i ng for the Project, Deve loper shall pay an initial issuer fee to City of Fifty Thousand Dollars ($50,000.00). The fee shall be paid upon funding of the City-issued bond financing. Developer agrees that Ci ty may at its so le discretion select the bond counse l , financial advisor and other professional service providers deemed necessary and appropriate by Developer that City deems necessary to effectuat e City-issu ed bond financing. Developer further agrees to fund all costs actually incurred by City in connecti on wi th such City-issued bond financing by providing City with deposits fo r all such bond financing related costs not cont ingent on the sale of bonds. In addition, Developer will pay for all c ity attorney and city staff time at appl icable rates. W ith the exception of city staff cost s, all other costs including, but not limited to out of pocket and professional services costs shall have City overhead expense of fifteen pe rcent (15%) added to said costs. If the City does not act as the issuer of bonds, the City shall coope rate in good fa ith with the issuance of bo nds for the Project by others, inc luding, but not limited to , holding a TEFRA heari ng at a time reasonably approved by the C ity Manager; however, Developer shall reimburse C ity withi n ten (10) business days after written demand for all costs actually incurred by City in connection therewith, including City staff and City attorney ti me , and th e overhead markup described above fo r other costs. If the City does not act as the issue r of the bonds , Developer shall pay a fee of Fifty Thousand Dollars ($50,000.00) to City for its coope ration with the issuance of Bonds f or the Pro ject by others, upon the funding of the bond financing; in addition, any costs incu rred by City in -10- 12853·00181204432(M.doc 95 connection with such cooperation shall be reimbursed/paid by Developer in accordance with the preceding provi sions of this paragraph. 6.12 Air Quality Fees . Developer agrees that the Mitigation Measures included in the City Counci l approved MND and MMRP , or subsequent env ironmental c learance document approved by th e Council, set forth the mitigation requirements for a ir qua lity impact s. Deve loper agrees to pay to City a one -time (not annual) air qual ity mi tigation fee , as described herein ("A ir Quality Fee "), in satisfaction of the Transportation Demand Management Fund mitigation requ irem ent for the Project. Th e Air Qual ity Fee may be expended by City in its sole discretion for reduction of regiona l air pollution emissions and to mi tigate residual Project air quality impacts. The Air Quality Fee shall be One Thousand Two Hundred Thirty and No /100 Dollars ($1 ,230.00) per residential unit to be paid prior to the issuance of the building permit for the first residential building in RPO 2012 -02. If the Air Quality Fee is not paid by January 1, 2019, then commencing on January 1, 2019, and annually thereafter, the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been paid. Th e CPI increase shall be determined by using the information provided by the U.S . Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/R iverside/Orange County metropolitan area during the prior year. The calcu lation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annua l indexing , the fee shall remain at its then current amount until such time as the next subsequent annual indexing wh ich results in an increase. 6.13 Assessment Districts. Prior to issuance of a Zoning Clea rance for the first building permit or the approval of any final map for the Project: (a) Developer shall pay th e City a Five Thousand Dollar ($5,000) Assessment District Format ion 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 th e 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 irriga tion. 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 Roa d 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 -11 - 12853·0018\2044326v1 .doc 96 ,intent of the City to appmv,e the requir-ed assessment ,each yea ,, bu1 to only levy that portion of the ass,e,ssment necessary to recover any past City costs or any anticipated City ,costs for the that fiscal year. l"he City shall administer the annual renewal of the Assessment rns1ri1ct or D.istricts, and any costs related to such administ~ation shall be charged to the fund estabHshed for such Assessment District revenues and expenses; Developer .agr,ees to ca.st affirmative b,.aHots for the estabJ:ishment of both Assessment D istricts , or both .zones of the one Distri ct, as applicable , and for annual increases in the assessments thereunder, for the purposes specified i;n this subsection. Devel:Oper hereby waives any right it may have to contest or protest any such assessments or assessment increases. n the event that any sudh Assessment District has insufficient funds for its purposes , then Developer shal pay tile funds required to the Assessment DJ1 strict within five (5) business days after wnUen demand from the Ass,essment District from time to time. Developer also ag1rees to add this language to any Regulatory A.gre,ement as part of the sale of any bonds issued by the City for this Project 6.1.4 Other Developmen1t and Pirooessing IFees. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay aH Ci y capital improvement, development, and prooessing, fees at the rate and amount mn •effect at. the time the fee is requi red to be paicl . Said fees include but are not .limited to Library Faci,lities Fees, Po llice Facillities Fees , Fire Facilities Fees, drainage, entitlement processing fees •. and plan check. and permit fees ·for buHdings and public improvements. Developer further agrees that unl ess specificalry exempted by this Agreement, it is subject. to all fees imposed by City at the Operative Date of thns Agr,eement and such future fees ii mposed as detennined by City m ,Its sole discretion so 1·0119 as such fees are imposed on projects similar to the Project or on property si milar to the Property. - 6.1 5 AOC F ees; llf paid prior to January 1, 2020, DeveJoper shalll pay lhe tos .Angeles Avenue Area of Contributfon (AOC) fee in e·ffect at the time of project approval for ,each r,esidential un iit 1in a building prior to the1 issuance of the bu lld ing permit for that res!idential 1 bu il'd ing with in the Project, consistent with City Resolutron No. 20149 3336. If paid 011 or after January 1, 2020, □eve .loper shall pay the L·0S Ang,e·les Avenue Area of Contribution (AOC) fee in effect at the, fme of building permit issuance. Dev,eloper shall pay the Gabbert Road/Casey Road Area of Contributf:on fees, if any, in effect at the tlme of building permit issuance for each residential unit 1iin a building prior to the issuance of the building permit for that r-esidentia ;i: build ing within the Piroj:ect . 16.16 Street lmpmvement Standards. The street improvements for all streets scheduled for dedication to the City s halill be des:igned and constructed by Dev,eloper to provide for a 50 -year Ile as determined by the City Eng~neerr. -12- 1 2853-00 18\2041132'6v1 .cfoc 97 6.17 Fee Protest Wa iver. Deve loper agrees that any fees and payments pursuant to this Agreement and for RPO 2012 -02 shall be made without reservat ion , and Devel oper 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. Deve loper further agrees that the fees it has agreed to pay pursuant to Section 6.3 of th is Agreement a re not publ ic i mprovement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto. 6.18 Annual Review Procedures. Developer agrees to comply with Sect ion 15.40.150 of the Moorpark Municipa l Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall inc lude evaluation of its compliance with the approved MND and MMRP. 6 .19 Art in Publ ic Places Fee. Developer agrees to pay the Art in Public Places Fee in effect at the time of building pe rm it issuance for each building prior to the issuance of the building permit for that residential building within the Project consistent with City Resolution No . 2005-2408 (1.0 percent of total build ing valuations exclud ing land value and off-site improvement costs). 6.20 Eminent Doma i n. Deve loper agrees that any election to acquire property by eminent domain shall be at City's sole d iscretion, and only after compliance with all legally requi red procedures including but not limited to a hearing on a proposed resolution of necess ity. 6.21 [INTENTIONALLY OMITTED] 6.22 CPI Indexes. In the event the "CPI " referred to in Sect ions 6.3, 6.7 or 6.1 2 above or Sections 6.24 or 7.18 below, or the "referenced Index" referred to in Sectio n 6.4 above are discontinued or revised , a successor index with wh ich the "CPI " and or "referenced Index" are replaced shall be used in order to obtain substantially the same result as would otherwise have been obtained if either or both the "CPI " and "referenced Index" had not been discontinued o r revised. 6.23 Conveyance to City of City Site: Utility and Construction Easements. The Developer agrees to convey to City the site (here inafter referred to as the "City Site") as shown in Exhibit "B " pursuant to the Purchase and Sale Agreement attached he reto as Exhibit "C" (the "Purchase and Sale Agreeme nt ") subject to the utility easement described in Exhibit "G ". Deve loper shall execute and deliver the Purchase and Sale Agreement concurrently with its execution and de li very of this Agreement and upon delivery to Deve loper of a copy thereof executed by the City , Deve loper shall comp ly with the Purchase and Sale Agreement. -13- 1 2853·0018\2044326v1.doc 98 If at any time the City Manag:er determi nes that a oonstruction easement for the CUy rs necessary with i n the slope 011 the southerly tiftee n ( 15} feet of the Property for purposes of :improving the CUy Site and City Manager requests such an easement :in wri ting then Developer shall grant a construction easement ta City which shall expi re five {5) years after the !last Certifi,cate of Occupancy 1i·s issued (and lhe Ci:ty Manager is hereby authorized to eXJecute a Certificate of Acceptance, for such easement). 6,.24 F[o~od Contro l Channel ~mprovements and Property line Improvements. Developer agrees to endose the flood contml channel l'ocated on the ea.stem portion of the Project as shown on the approved Project Site Plan t o connect to the enclosed portion of the channel on the City Site to the satisfaction of the City !Engineer/Public Works Director and the Ventura County Watershed ProtecUon District Developer shall be responsible for any aesthetic: or .landscape improvem ents over and around the channel as requ ired by Ventu ~a County Watershed Protection rnstrict and a,s pa rt of the Project Approvals. Developer further agrees to const ri uct retaining wans (made of slumpstone , not precision blocks) with a color approved by the Community Development Directo r ~n good fa ith and lahdscapmg· along t h e southerly prope.rty line as shown on the Proj ect Site Plan as approved and oonditioned by the City Council Resolution approving Residential Planned Develo,p.ment Permit No.. 20 · 2-02 to the satisfaction of the Community Development Directo,r.. 6.25 High Street Improvements,, Deve oper agrees, prior t:o issuance of the first bui Id ing perm it for the first ms.ideritial building , with i n , he Project to improve Hi ,gh Sbeet within ,its •existing r,ight of-way from it s intersection w'ith Moo~park Avenue up to the point of the temporary fire access to the extent requ ir-ed by Ventura County Fi re Department, and the City Engineer in accordance with the approved S ite Plan for the Project, for emerg ,ency secondary access to 'H1e· Project. In no, event shal · Developer be required to acquire any property in order to fulfi I this obligation . 6 .216 Power Pole Relocation Costs an-d Fees . Per the Rea Property Aoquisitl :i:on Agreement between City and Essex approved by the City Council on March 18, 2009, City paid for a priivate uUlity consultant fBJ Palmer & Associates) to redesign (Revised Plan) the Edfson 66kV Essex Pole Relocation Plan (Essex Plan) in order t.o plan for the relocation of t:he exisUng poles.. T he Real Property Acquisition Ag 1reeme11t also ca 11,ed ·for City to pay for installation of any pofes or guy poles reqa.dred in addition to those shown on the Essex Plan . Developer had agreed to pay for the relocation nf the existing 66 KV overhead power lines as shown on the Essex P lan under ·the Real Property Acquisition Agreement Developer now agrees that the relocation of the ,exist i ng pol'es as shown in the Rev ised Plan contained in Exhibit "0,'l does not :r;equire any addiUonal poles or guy poles from those shown 011 the Essex Plan , and that C it.y iis not obl igated to pay any further costs under the Real Property AcquisfUon 12553·0018\2044326v1 .doc 99 Agreement. However, Deve loper furthe r agrees to pay $400,000 to City prio r to issuance of the certificate of occupancy for the first residen tial build ing , to be used by City in its sole and unfettered discretion, due to the power po les in the Revised Plan l imiting full util ity and use of City property. 6 .2 7 Required Tenant a nd Guest Park ing . Deve loper agrees to provid e a tota l of at least 2.00 parking spaces per unit on site. Two park ing spaces shall be des ignated and reserved fo r each of the 2-bedroom and 3-bedroom units, and one space shall be designated and reserved for each of the 1- bed room units, with the remainde r of the spaces available for guest park ing . At least one of the parking spaces designated and reserved for each of the units shall be in a ga rage or covered carport. There shall be no extra charges for required parking for any units (whether or not they are Affordable Units). Deve loper shall only be required to provide ninety- four (94) guest parking spaces. 6.28 [INTENTIONALLY OMITTED] 6 .29 Restoration of City Site. Prio r to the i ssua nce of a grad ing permit by City for the Property, Developer shall provide reasonable evidence satisfactory to the City Eng ineer/Public Works Director and the Director of Community Development of the amount of stoc kpi led dirt placed onto the City Site prior to January 1, 20 17; such amount shall be the maximum amount of d irt that may be re moved from the City Site fo r placement on the Property. Developer shall, prior to the conveyance of the City Site to City and as a condition to issuance of the Certificate of Occupancy for the last build ing with in the Project, and consistent with Section 7.10 of this Agreement, restore the City Site to a reasonable condition , free of Developer's construction debris, piles of construc tion related dirt and all other construction material deposited or stockpiled by Develope r to the satisfaction of the City Engineer and Commun ity Development Director. The elevation of the City Site must be restored to the level prior to the Deve lo per's use of the City Site for Deve loper's stockpi lin g of construction dirt and material (except fo r graded access and the storm water quality basin, whic h shall be at the e levations requi red by the Project Approva ls) to the satisfaction of the Cit y Engineer/Public Works Di rector and the Com munity Deve lopment Director. 6.30 [IN TENTIONA LLY OMITTED] 6.31 Prior Development Agreement and Residential Planned Deve lopment Perm it. Developer agrees that the previous Development Agreement No. 2004-03 fo r the Property , approved by the City Counci l on Ju ly 18, 2007 by Ord inance No . 355, did not take effect and was not reco rded because th e Developer did not execute it. Deve loper further ag rees that by th e enab ling ordinance approving th is new Agreement, the City's previous approva l of Development Agreement No. 2004-03 pu rsuant to Ordinance -15- 12853.0018\2044326v1 .dO<: 100 No. 355 is rescinded and that rescIssIon wil l take effect upon the Operative Date. Developer further agrees that the approval of Residential P lanned Development Permit No. 2004-06 for the P roperty, approved by the Cit y Council on July 18, 2007 by Resolution No . 2007-2612, had expired due to lack of Project inauguration by Developer. 6.32 [INTEN TIONALLY OMITTED] 6.33 [I N TENTIO NALLY OM ITTED] 6.34 City Abi lity to Modify. Developer acknowledges the City's ability to mo d ify the development standards and to change t he General Plan designation and zo ning of the Property upon the t ermination or expirat ion of this Agreement (if the Project has not been built), and Deve loper hereby waives any rights they might oth erwise have to seek judicial review of such City actions to change th e development standard s, General Plan designation and zoning to those development standards and density of permitted development to that in exis tence prior to the approva l of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 6.35 Annual Community Services Fee. Commencing upon issuance of a Zoni ng Clearance by the City for occupancy of the fi rst unit of the Project, and o n each anniversary thereof, Affordable Housing Owner shall pay to City a community services fee equal to Eight Thousand Dollars ($8,000.00) increased by two percent (2%) on each annive rsary of the Operative Date. (Th is fee is the same fee as is included in the Affordable Housing Agreement.) 6.36 Indemnity. Developer will defend, indemnify and hold City harmless from and against any and all claims, liabilities, losses, damages, costs and expenses arising from any activity by Developer or its contractors on the City Site. 6 .3 7 Storm Water/Floo d Determination Basin Ob l igations. Deve loper shall fu lfill its obligations under Section 7.18. 6 .38 Status of Real Property Acqu isition Agreement. Developer hereby stipulates and ag rees that all of the obligations of the City under that certain Real Property Acquisition Agreement dated March 31 , 2009 (the "Portfolio Agreement") between the C ity and Essex Portfolio, L.P. have been satisfied. Developer shall defend, indemnify and hold City harmless from and against any and all claims by Essex Portfolio , L.P.: (i) that t he foregoing is not correct; o r (i i ) under or with respect to the Portfolio Agreemen t. 6.39 Well Site Deed. Concurrently with its execution and del ivery to City of this Agreement, Developer shall execute, cause to be duly acknowledged and -16- 1235:J.001812044326v1 .doc 101 7. deliver to City an original of a Grant Deed in the form attached hereto as Exhibit "I" conveying the so -called "well site" to City. City Agreements. 7.1 Commitment of Resources. At Deve loper's expense, City shall commit reasonable time and resources of City staff to work with Deve loper on the expedited and paralle l processing of applicati ons for Project Approvals and all Subsequent Approvals and Building Perm its for the Project area and if requested in writing by Developer shall use overtime and independent contractors whenever possible . City shall process an air rights subd ivision separating the sixteen (16) Very Low Income Units and the twenty-four (24) Low Income Un its requ ired by the Affordable Housing Agreement so that they can be conveyed to the Affordable Ho using Owner pursuant to the aforementioned map (but no other subdivision maps) upon receipt of a complete application from Developer. Developer shall assume any r isk related to, and shall pay the additiona l costs incurred by City for, any expedited and paralle l processing . City shall also commit reasonable time and resources of City staff to work with the Ventura County Water Protection District for the processing and permitting of the plans for the undergrounding of the channe l. 7.2 Easement Acquisitions. If requested in writi ng by Deve loper and limited to City's legal authority, City at its sole and abso lute discretion shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in wh ich Deve loper does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside C ity's legal boundaries. The process shall generally follow Government Code Section 66462.5 et seq. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, eng i nee ri ng fees , City staff costs, and C ity overhead expenses of fifteen percent (15%) on all out-of-pocket costs. 7.3 [INTENTIONALLY OMITTED] 7.4 Concurrent Entitlement Processing. City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements fo r the Project so long as the application for such entitlements are "deemed complete• in compliance with the requirements of Chapter 4.5 Review and approval of Deve lopment Projects (Permit Streamlining Act) of the California Government Code. 7.5 Park Fees . C ity agrees that the Park Fee required under Sec tion 6 .7 of this Agreement meets all of Developer's obligation for park land dedication provisions of state law and City codes. -17- 12853·0018\2044326v 1 .doc 102 7 .6 [INTENTIONALL Y OMITTED] 7. 7 Reim~ursements from other De,velopmenl:s. City shall faci:fitate the reimbursement to Developer of' any ,costs ·nourr,ed by Developer that may be subject to partial reimbursement from other developers as a oondition of approval of a tract map, deve·lopment permit or development. agreement with one or more other developers and at Citys discretion may include provisions requiring such reimbursement to Developer for the same in such other development project oonditions of approval. 7 .8 [INTENTIONALLY OMITTED]' 7.9 Aogulsition by City of Cuty S.11e . Provided Developer shall have duly executed and delivered the Purchase and Safe Agreement to City, City shall enter into the Purchase and Sal.a Agre:ement to acquire the City Site . 7 :10 Develope_r/City Use· of City Site for Stockpil'ing Dirt. Developer may reasonably· stockpile construction dirt and materials on the City Site during construction of the Project subject to Seietion 6.29. Upon execution of the Purchase Agreement,, Deve ,l!oper shall grant an easement to· City pursuant to the Easement Agreement in the form and substanoe .attached as Exhibit ix c " to the Purchase Ag11eement pursuant to which C: ty shall have access to the (approximately) two (2) acres of the City Site on the southeastern portion of the City S11te, adjaoernt to the existing Hligh Stre,et i mpr-ovements and otherw:i,se at a location reasonably aoceptable to City more particula:rly described in the Easement Agreement, on which the City may stockpile dirt p1rior to, the conveyance ·of the Ctty Site to the City, and in connection therewith, City shal l comp y with Section 2 .. 2 of the Purchase and Sa !l1e Agreement and the Easement .Agreement. The City agrees, to fence the approximately two (2) acre s"te to separate it from the bal'ance of the City Site. Prior to issuanoe of the first build ng permit for lhe Prope1rty, the portion of the City Site used by Developer under t1he first sentence of this S.ection 7 .1 O shall be restored by □eve loper to a r-easonabre cond iti:on, free of Develope1rs construction debris , p:iles of dirt and a I other oonstruction-r,elated material deposited or stockpiled by Developer, and to its e,levation level that existed prior ro Developer's stockpiling of dirt and mateIi'al, all to the satisfa.ct.ion ,o.f the City Eng·neer/Publ'c Works Direc,tor and Community Development Director .. 7.11 Pad<ing Requirements for Tenants and Guests. lhe parl!dng requi :r;ements shall! be as set forth in Section 6 .27 above . 7.1.2 Art ,in Public Places Fee. City agrees tha the Art in Public Places Fee re·quir-ed under Section 16.1,9 of this Agreement meets all of Developer"s obligation for Art in Public Places prov·sions of City codes and reso-luUons. -18 - 12853,-0018\20443Wv1 .doc 103 7.13 Bond Financ,ing_. City acknowledges Developer may want to use City- issued bond financing fo:r the Project. If City, at its sole and absolute dfscretion, authorizes such bond financing.,, then City agrees to use good faith effo.rts to accommodate any request by Developer for an inducement :resolut!on allowing the use by Developer of City-i ssued bond financing for the Project. C ity shall a so comply wlih lts obli:gations under Section 6.11 abnv,e. 7 .14 [IN:TENTrONAtt Y OMITTED] 7 .15 Grant_ Funding Assistance , City shaU use good faith efforts., at no cost to City, to assist Developer in obtaining public grnnts , loans, or other public assistanoe· from pubic agenci ·es othe r than the City, including, but not limited to MetroHnk, bu only if assistiing :Developer in obtain ;i·ng such funds does not directly or :indirectly filnanci.ally burden City. 7.16 [tNTENTIONALY OMITTED] 7 .17 Power Pole Relocation. City agrnes to acce,pt ;relocation of the Edison 66kV power poles on City Property cons:istent with tile Revised Pillan discussed in Section 6.26 and attached hereto as !Exhibit 11D ". 7 .1 8 Storm Water/Flood Detention Basin. City .agrees that DevEdope .r may use· ~he storm water/flood detenUon basin focated on the City Property and depicted on Exhibit ''H '' for storm wat,er/retention purposes for the Project and City shall execute· and del'ver a revocable !license agreement lo Developer to that affect ; however, City may ,elect by writ.ten notice to Developer to relocate said detention basin and any service road and secondary access road loca.ted on the City Property at any Ume, and D,weloper shall reimburse or pay CUy for the costs of :such relocation W1ithin ten (10) business days after written demand from C ity from time to time describing such costs . Deveifoper shalll promptly provide a bond aooeptabl,e to City in the amount of such costs,, a.s projected i·n g:ood faith by Olty , to ensur•e pa~ment of the oo,sts, and every two (2), years the amount of the bond shall be increased (by amendment o:r by· a replacement bond) lby the percentage increase over the applicable two year per:i:od in the Caltrans Highway S.id Prioe Index fo.rSeJected Cal ifornia Construction Items, as determ;ined i n good faith by the C:f:ty Manager. 7.19 Extension of High Street. City agrees that Developer shall not be required to mak,e any improvements related t:o the extension of High Street ,except as necessary to meet Ventura County Fire Protection Disbi ct r,equirements for the provisiion of secondary eme rgency access to the Property. 7 .20 Prior Deve :lopment Agreement and Residential P!lanned Development Permit City .agrees that the previous Development Agreement No .. 2004- 03 for the Pmpe•rty, approved by the City Council on .July ·18 , 2007 by n'.853-0018\2 0114326v1 ,do c 104 Ord inance No. 355, neve r was executed, as Developer never had signed the previous Deve lopment Agreeme nt No . 2004-03, and that the enabling ord inance fo r previous Deve lopme nt Ag reement No. 2004-03 (Ord inance No . 355) is rescinded upon the Ope rative Date. City further agrees that the app roval of Residential Planned Deve lopment Pe rm i t No. 2004-06 for the Property, approved by the City Counci l on July 18, 2007 by Resolution No . 2007-2612, had expired due to lack of Project inauguration by Deve loper. 8. Supersession of Agreement by Change of Law. In the event that any state or fede ral law or regulation e nacted after the date the Enab l ing Ordinance was ado pted by the City Counc i l prevents or precludes compliance with any provisio n of the Ag ree ment, such provis ion shall be dee med mod ified or suspended to com ply with such state or fede ral law or reg ulat ion, as reasonab l y determi ned necessary by City . 9. Demonstration of Good Faith Compliance. In order to ascertain co mpliance by Developer with the provisions of this Agreement , the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapte r 15.40. of City or any successor thereof then in effect. The fa ilure of City t o conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, dim inish, i mpede, or abrogate th e obl igations of Deve loper he reu nder or re nde r this Agreement invalid o r vo id. At the sa me time as the referenced annua l review, City shall also review De velo per's co mpliance with the MMRP. 10. Authori zed Delays. Performance by any Party of its obligations hereunder, other than payment of fees , shall be excused during an y period of "Excusable Delay", as herein after defined, provided that the Party claiming the delay gives written not ice of the delay to the other Part ies as soon as possible afte r the same has bee n ascertained. Fo r purposes hereof, Excusab le Delay shall mean delay that d i rectly affects, and is beyond the re aso nable control of, the Party clai mi ng th e delay, incl uding without limitat ion : (a) act of God; (b) civi l commotion; (c) riot; (d) stri ke, picketi ng or other labor dispute; (e) shortage of materia l s o r suppl ies ; (f) damage to work in progress by reason of fire, flood, earthquake o r other casua lty; (g) failure, delay or inabil ity of City to prov ide adequate levels of publ ic services, facilities or infrastructure to the Property including, by way of examp le only, the lac k of water t o se rve any port ion of th e Property due to drought; (h) d elay caused by a de lay by othe r third party entities wh ich are requ ired to approve plans o r documents for Develo per to co nst ruct the Project , o r restrictions imposed or mandated by such other third party entiti es or governmental entities other than C ity, (includi ng but not limited to , Ventura County Watershe d Protection D ist rict); or (i) litigation brought by a third party attacki ng the va l idity of this Agreement, a Project Approval, a Subsequent Approval or any other act ion necessary fo r development of the Proj ect. -20- I 2853•001812044326v l .doc 105 11 . Default Provisions. 11.1 Default by Developer. The Developer shall be deemed to have breached th is Agreement if it: (a) practices , or attempts to practice, any fraud or dece it upon City; o r wi llfully violates any order, ru ling or decision of any regulatory or judicial body having jurisdiction over the Property o r the Project, provided that Develope r may contest any such order, ruling or decision by approp riate proceedings conducted in good fa ith, in which event no breach of this Agreement shall be deemed t o have occurred unless and until the re is a final ad j udication adverse to Developer; or (b) fai ls to make any payments required under th is Agree ment with in five ( 5) business days afte r City gives written not ice to Developer that the same is due and payable ; or (c) breaches any of the other provisions of-this Agreement and fai ls to cure the same within thirty (30) days after City gives written notice t o Deve loper of such breach ( or, if the breach is not able to be cured within such thirty (30) day period, Developer fa ils to start to cure the same with in th irty (30) days after delivery of written notice by City of such breach or fa i ls to the reafter diligentl y prosecute the cure to completion). 11.2 Default by City. City shall be in breach of this Agreement if it breaches any of the provisions of this Agreement and fails to cure the breach within th i rty (30) days after Developer gives written notice to City of the breach (or, if the breach is not able t o be cured within such thirty (30) day period, City fails to start t o cure the same within thirty (30) days after delivery of written notice from Developer of such breach or fa i ls to thereafte r diligently prosecute the c ure to co mpletion). 11.3 Content of Notice of Violatio n. Every notice of breach shall state with spec ificity that i t i s given pursuant to this sect ion of th is Ag reement, the nature of the alleged breach, and the manne r in wh ich the breach may be satisfactorily cured . Every not ice shall state the applicab le pe riod to cure. The not ices shall be given in accordance with Section 20 he reof. 11.4 Remed ies for Breach. Each party shall have any and all remedies for breach of this Agreement that may be avai lable under app l icable law. Additionally, the Parties acknowledge that remed ies at law, including without li m itation monetary damages, wou ld be inadequate for breach of th i s Agreement by any Party d ue to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or -21- 1 2853·0018\20M 326v1 .doc 106 possible to restore the Pm pe rty to its n atura I oond ition o nee impl,ementation of this Agrieement has begun. Consequently, the remedies for bmach of this Agreement by either party shall incllude injunctive re ilief andfor specific performance . In addition, if Developer is ,in default under this Agre:ement, City shall have the right to withhold the issuance of building permits to Developer from he date that the notirce of violation was given pursuant to Section 11.3 hereof unt:il the da:te that the breach is. cured as provided in the notice of vio,ation. 12. Mortgage Protection. If City g:ives notice to Developer o a breach, City shall s,end a copy of the not,ioe to eaah holder of reoord of any deed of trust on the portion of the Property in wh"ch Developer has a legal ,nter-est ("Financier,.), provided that the F"nancter has given prior written notice of iits name and mailing addr,ess to City and the nohoe makes specific reference· to this section . The -oopi ,es shall be sent by United States mail, reg istered or certified , postag ,e prepaid, return receipt requested, and shaU be deemed received upon 1he third (3rd) day after deposit. Each Financier that has given pr1ior no~ice to City pursuant to this section shall have the right, at. its option .and insofar as the rigIhts of City are concerned,. to cure any such breach wUhin eight,een (18) days after the giving of ~he notice by City. If such br:ea.ch canno,t be cured within such time period, the Financier sha -11 have su:ch addiirtiona period as may be reasonabfy required to cure the same, provided that the Financier gives noUce to City of Us intention to cure and commenoe,s. the cure within eighteen (18) days after giving of the nonce by City and thereafter d"ligently prosecu es the same to com,pfetion . City shall not commence legial action against Developer by reason of Developer4s breach without allowing the Financie,r to· oure the same as ·specified he:rein. Notwithstanding any cure by Fii1nancier. this Agireement sha I be binding and ,effective against the· Financier and every owner of the Property, or part the 1reof, whose title thereto is aoquired by foredosure-, trustee sale or otherwise; provifded however, ,Financi ,er and sudh owner shall not be responsible· for any matters that occurred prior to their acquisition of the P reject 13. Estop,pel Certificate. At any Ume and from time to time, Devel'oper may deliver written notice to City and Gity may derver written notice to Dev-eloper re,quesUng' that such Party certify In writing hat, to the knowledge of the certifying Party,, (i) this Agreement is in full force and effect and a bi11ding1 obligation o.f the Parties, (ii) this Agreement has not been amended , or if amended , the identity of each amendment,. and (iii) the equesting Party is not in breach of this .Agreement,, or if in breach, a description of each such brieaah . The Party receiving such a request s ha :U execute and return the oe rflicate within ten ,( 1 O) days following· receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who r,equested the certificate and by 12853-00 181.2044326v1 .doc 107 holders of reoord of deeds of trust on lhe portion of the Property in which that Develop,er has a legal interest. 14. Admin·stration_of Agreement. Any oonsent or approval here·n to be given by the City may be given by the Ci1ty Manager provided it is express and is in writing. Any decision by City· staff concerning the interpretation and administratJlon of this Agreement .and development of the Property in accordance herewith may be appealed by the Developer to the Cirty Council provided that .any such appea shall be filed with the C ity Clerk of City within ten (10) day·s after the affected Developer receives written notice of the staff deci:sion. The City Council shall render its decision to affirm reverse or modify the· staff dec ision within th irty (30) days after the appeal was filed. The Develloper shal l' not seek ju:djcial review of any staff decision without first having exhausted ,its remedie·s pursuant to this secfon. 15 . Amendment or Termination by Mutual Consent. Jn accordance with the prov1isions of Chapter 15.40 of the Moorpa rk Municipal Code of City or any successor thereof then .in effect, 'this Agreement may be amended or tenninated , in whole or i:n part , by mutual oonsent of C ity and the affected Developer. 15.1 , xempti on for Amendments of Project Approvals. No amendment to a Project Approval or Subsequent Approvals shal l require an amendment to this Agr1eement and any such amendment shaH lbe deemed to be incorporated ·nto this Agmement at the time that the amendment becomes effective,. p ovided that the amendment is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size O'f b u ildings or reservations and dedications as contained in the Proje ct Approval:s or Subsequent Approvals . 16-. Developer Indemn ification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all l osses, liab]ities. fines, pena.lties t costs , claims, demands, damages, injurie:s or Judgments aris~ng' out of, or r,esulting 1fn any way from ; Developer's performance pursuant to thfs Agreement. Developer shall indemnify, defend with counsel .approved by City, and hold harmless City and its officers, emp.lo yees and agents. from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any prov·sion thereof,. or any Project Approval or Subsequent Approval or modifications thereto. or any other subsequent entitlements for the project and including any related environmental! approva .. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. -23- 12853--0018\Z044326v1 .<Joe 108 18. Operative Date. As described in Section 1.6 above, This Agreement shall become operative on the Operative Date, being the date the Enabling Ord inance becomes effective pursuant to Government Code Sect ion 36937. 19. Term. This Agreement shall rema i n in full force and effect for a term of seven (7) years commenc ing on the Operative Date or until one year after the issuance of the fina l building permit for occupancy of the last bu ild ing of the Project whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Notwithstanding the foregoing , the following shall survive the expiration or earlie r termination of th is Agreement: (i) all obligations arising under this Agreement prior to the expiration or earlier termination of th is Agreement; (ii) density, parking and other physical aspects of the Project construction in accordance with this Agreement. the Affordab le Housing Agreement, and RPO 2012 -02. Exp iration of the term or earlier termination of th is Agreement shall not automatically affect any Project Approva l or Subsequent Approval or Building Permit or Fina l Bui lding Permit that has been granted or any r ig ht or obligation a rising independently from such Project Approval or Subsequent Approval or Building Permit or Fi nal Building Permit. Upon exp iration of the term or ea rlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public reco rds as lo the Property, and every portion thereof, to the extent perm itte d by appl icable laws. 20. Notices. All notices and other commun icat ion s given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered o r upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested , to the Part ies at the addresses set forth in Exhibit "D" attached hereto and incorporated herein . Any Party may, from ti me to time , by written notice to the other, designate a different address which shall be subst ituted for the one above specified. 21. Entire Agreement. This Agreement and those exhib its and documents referenced herein contain the ent i re agreement between the Part ies regard ing the subject matter hereof, and all prior agreements or understandi ngs, oral or written, are hereby merged herein. This Agree ment shall not be amended, except as express ly provided here in. 22. Waiver. No wa iver of any provi sion of this Agreement shall constitute a waiver of any other provi sion, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same p ro vision. No waiver shall be binding, unless it is executed in writing by a duly authorized representat ive of th e Party against whom enforcement of the wa iver i s sought. -24- 12353·0018\2044326vl .doc 109 23. S,everability. If any prov·s·on of this Agreement is determined by a court of oompetent jurisdicUon to be invalid or unenforceab e,, the remainder of thi.s Agreement shall be effe,ctive to the extent the remaining proviisions am not rendered impra.ciical to perform, taf<-"ngi ·nto consideration the· purposes of this Agreement 24. Relationship of the Parties.. Each P'.arty acknowledgres that, in en~eringi into and performi'ng under this Agreement, iit: is acting as an independent ,entity and not as an agent of any of the other Parties, in any respect. Nothing conta,ined herein ,or in any document ,executed in connection herewith shall be construed as creating the relationship ,of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25.. No Third IPartv S.enef1ciarie·s. This Agreement is made and entered into for the sole benefit of the Parties and thek successors in interest No other person shall have, any right of action based upon any provisfon of this Agreement. 26 . ~ecordation of Agreement and Amendments. This Agreement and any amendment thereof' shall be recorded with the County !Recorder of the County ,of Ventura by the City Cl ,erk of City within tile period :required by Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then I1n effect. 27. Cooperation Between City and Developer. City and Developer shall eXiecute and delliver t,o the othe:r all such other and further instruments and documents as may be necessary to car.ry out: the purposes of this Agreement 28. Rules of Construction. The, ,capUons and headings of the var"ous sections and subsections of thiis Ag1r-eement are for convenience of reference only, and they sha,I ! not constitute a part. of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be, in confUct with any pr-ovision of the Purchase and S.ale Agreement, the Project Approvals or the Subsequent Approvals , the provision of '~his Agreement shall pr:evai • 29 . Joint Preparation. This Agreement shall be deemed to have been prepared jointly and ,equally by the Parties and it shall not be construed against any Party on the ground that the Party prepaired the Agreement or caused it to be prepared. 30. Governing Law and Venue. Thi s Agreement is made, entered into, .and executed in the County of V,entura , California, and the laws of the State of California shall govern its interpretation and enforcement Any action , suit or proceeding r;elated to , or arising from, this Agreement she.II be filed in the appropriate court having j:urisd ·cuon in the County of Ventura. 31 . Attorneys' Fees. In the event any action , suit or pro,oeed ing is brought for the enforcement or declaration of any right or o bl ig atio 11 pursuant to. or as a resu It of any alleged bre,ach of this Agr,e ,ement, the prevailing Party shall be entitled to its -25- 2&53,.00 18\20443'26V1 .doc 110 reasonab e attorneys' fees and litigation expenses .and costs, and any judgment, order or decree rend ,ered in such action , suit or pmce.eding shall inc ude an award thereof. 32. Gounteroarts . This Agreement may be executed 1in multiple counterparts, ,each of which shall be deemed an original, but au of wl-i"ch constitute one and the same instrument. IN WITNESS WHEREOF, Essex Moorpark Owner, L .P , and City of Moorpark have executed this Development Agfeement on the date first above written . :E.SS :EX IMQQ :RPARK O·WNER L.P., a California llmi ed partnership By: E.ssex MoorparK GP, L P a California limited partnership, I.ts. general partner By .: Essex Management Co rporaitio 11 a Caliiornia. corporation , its genera partner By : TiUe: Print -2'6- 12&53 -0018\204432&11 .doc CIITY OF MOO,RPARK 111 ACKN 10W1LEDG MENT .A notary publ ic or other officer completijn:g this oertificate ve11ifies on ly the identity of the individua I wiho signed the document to 'livhich this certificate is attached, and not the truthfulness. accuracy, or validity of that document. State· of California County of San Mateo on April 11, 2017 before me. Sandi A. Cabral, Notary Pulb 'lic (insert name and tme of the officer} persona ll y appeared _J_o_h_n_,E_u_dly_r --------~-----,--------- who proved 'Lo me on the • basis of satisfactory evidence to be the pe rso11(s) whose name{s) is /are subscribed to the within instrument and acknowledged to me that he/she/they ,e~ecuted the, same in his/her/their authorized capacity(ies), and that by his/herlthelr s ign:ature(s) on Ile instrument the person{s}, or the entity upon behalf of which the person(s) acted, ,executed the instrument I certify under PENALTY OF PER.JURY under the laws of the State o,f Califomia lhat the foregoing paragraph fs tru:e• and c-o .rrect WI.TIN 5S my hand and ,official seal. . Signature ':L~ ' .tf!!. , ~ "' 112 CITY OF MOORPARK 799 Moorpark A venue, Moorp rk, California 93021 I Pho e (805) 517-6200 I , ·ax ( SOS) 532 -220 5 A notary public or other officer completing1 this certificate verifies on:ly the idenmy of the individual who signed the document to which this certificate is attached,. a.nd not the truthful 'ness .. accuracy , or validity of that document. PUBLIC .AGENCY FORM OF ACKNOWLEDGMENT STATE OF CALIFORNIA. ) COUNTY OF VENTURA ) ss. CITY OF MOORPA~K ) On this 17th day of April In the, year 2017 , before me, Mau:r,een 1Benson.. City Clerk of the City of Moorpark., personally appeared J'anice S. Parvin , who proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and who is personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same !in he:r authorized capacity as the May:or of the City of Moorpark. and that by her signature on the instrument, acknowledged to me that the City executed the instrument. I certify under PENAL TY OF PERJlJRV under the aw.s of the State of CaHiom i a that the foregoing 1 paragraph is true and correct. Witness my hand and Official Sea:1 Maureen Benson Oil(}' Clerk J A !C E S. PA RVIN May or M[K OS, Ph .D. ilmem b ~ DAVID POLLOCK ou ndlm mbcr KENSlMON ounc ilmemb<!r MARKVANDAM Cmrncilmcmlxr 113 EXHIBIT HA" LEGAL DESCRIPTION! AL L of Paree 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of Moorpark~ County of Ventura, State of Calilorn,a, re·oorded .Ju:ty 21, 2005 as Document No. 200507.210178764 or ,official records in the Office of the County IR,ecorder of said County, being a porrron 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 , Tra.ct 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 Oi:ty , County and State as shown on Map filed in Book 5 , Page· 37 of said Miscellaneous Records (maps). TOGE.THER WITH that portion of Par-ce :I IA of in that certain lot Line Adjustment No. 200503 ·n the City of Moorpark, County of Ventura, State of Cal 1ifomia, recorded May 3, 2005 as Oocumen No . 20050503-0108315 or official records :n the Office ,of the County Recorder of said County, being a portilon of Lot "f", Traci No. "L", Rancho Simi as per map med in !Book 5 Pag:e 5 of Misoellaneous Records (Maps) in the Office of sa id County Recorder, lying northerly of the following described ine ; BEGIN NI NG at a point in east line of Pa~el IA of said Lot Liine Adjustment No. 2005-03, distant thereon North 292.97 feet ·from the southeaste:rly comer thereof; 151 Thence, departing said east line South 89°38'32'West 752 .05 feet; 2nd Thence , South 27°20'34West 36.75 Jeet; 3 rd Thenoe, South 89°03'5411West 293.78 feet to a po ~nt in the west line of said Parce :I' 1A. 1285J..0018\2044326V'l ,doc 114 LEGAL DESCRIPTION OF CITY SITE Ailll ,of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark, County O'f Ven~ura, 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 "l", 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 TiHEREFROM that portion conveyed to the Cirty of Moo parrk by deed April 30, 2009 as l'nstrument No . 20090430-00069389 of Official Records of said County. ALSO EXCEPT THERE.FROM! that portion lying northerly of the fo,U,owl ng descnibed line; BEGIINNING at a point in east line o • Paroel 1 A of said tot ,line Adjus.tment No . 2005- 03, distant thereon North 292 .97 ·feet ·from the· southeasteriy oomer thereof; 1st Thence, departiing said ,east l'ine South 89°38'32"West 752.05 feet; 2 nd Thenoe, South 2T'20 .34West 3'6.75 feet; 3rd Thence,, South 89 °03'54"West293 . .78 feet to a point in the west line of said Parcel 1A 12 S53-0018\2044 326v1 .doc 115 EX IHIIBIT uc" FORM OF REAL ESTATE PURCHASE AGREEM'E.NT (AUached .) 12853•00 18\2044326v1 .doc 116 AGREEMENT FORl';UR~E AND SALE. AND · ESCROW INSTRUCTIONS TIIIS AGREEMENT FOR PURCHASE .AND SALE AND ESCROW INSTRUCTIONS (this uAgreemeut1') is dated as of _____ ........, 2017; and. is entered. int9 by and b tween the CITY OF MOORP.ARK CCB yer")t and ESSEX MOORPARK OWNER,, L.P., a Cafil"omia limited partnership c~seJler"). Upon execution of this -Agreement by Buyer;· Buyer shall promptly d\eliv;er .a copy of this executed Agr ement to S Iler. RECITALS A. Sefiler is. the -owner of th.e land described on Exhibit~,, and the improv, meets (if an:y) thereon (coliecdvely,. the "Propectyt)). H. · Buyer desires to purchase the Pro -perty from SeHer and Seller desires to sell the Property to Buyer. C. .Buyer and Seller are parti.es to the ,certain Development A.greemeot dated . 2017 (the "Devefopm.ent Agreement'') and this Agreement is being ,ex.ecuted -----~ as a co dition of and in accordance with the Development Agreement NOW7 TIIEREFORE, in consideration ofthe Independent Goosideration. set forth .in Section I 2.2 below, and for ,other valuable consideration, the .recei_pt and sufficiency of wmch are be,reby admo•wledged, Buyer and Seller hereby agree as follows: 1. SALE AND PURCHASE P'.RlCE. 1.1 Sa1e and PUIC!hase:. Seller agrees to s U th Property to Buyer: and Buyer ,agreet to purdl~ the Property upon. the terms, and conditions hereafl,er set forth. ,, 1.2 Purchase Price. 1.2. l The pu:rchase price ,("Purchase Price'") for the Property shall be On Dollair ($1.00), l .2.2 llndependeu .t Consideration. Notwidlstanding anything irn this Agmement to the contrary~, upon execution of this Agreement by Buyer, One Hundred and No/I 00 DoHars. ($100.00) shal l be deli.vered by Buyer to Escrow Agent-for delivery to Se1ler as non-refundable independent contract cons ~deratio ,n (the "ladependent Consideration'"), which is in addition to the Purchase Price, and which amount has 'been bargained for anq ~greed to as cons· demtion for Seller's execution and delivery of this Agreement and for the .rights and. privileges, granted to Buyer h rein, including, wUhow: limitation, any and all rights granted to Buyer t-0 termina,te this Agr:eement during certain periods hereunder. If Buyer elects to terminate this. Agreement for any .reason other thae. SeUer s default, S•eHer shall retain the Independent Consideration. The Independent Consideration shaU not be applicable toward . the Purohase Price. 117 2. TITLE. 2.1 General. Title to the Property shall be conveyed by a grant deed in the form attached hereto as Exhibit "B" and shall be evidenced by a CLTA Standard Coverage Form of Owner's Policy of Title lnsll!8Jlce (or an AL TA Extended Coverage Form Policy, if Buyer elects such coverage as provided in Section 2 .3 hereof) ("Title Policy"), and the extra cpst of any such ALTA coverage shall be borne by Seller as described in Section 4.9 below. The Title Policy shall be issued by First American Title Company, 1737 North First Street, Suite 500, Sao Jose, CA 95112, Title Officer: Michael D. Hickey ("Title Company"), with liability in the full amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of all liens and encumbrances and other matters affecting title to the Property , except the utility easement described in Section 6.23 of the Development Agreement (the "Utility Easement") and other title exceptions which Buyer has approved in writing (which shall constitute "Approved Title Exceptions") except that real property taxes and assessments shall be prorated. (Seller may claim a refund of property taxes in the event any property taxes paid are allocable to the period after the closing. Buyer, as a municipal corporation, is exempt from property taxes.) · 2.2 Acts After Date of Agreement; City Access. During the period from the date of this Agreement through the Close of Escrow, exc~pt for the Utility Easement described in Section 2.1 above and the Access Easement described in this Section 2.2, Seller shall not record or permit to be recorded shy document or instrument relating to the Property or physically alter the Property or permit or cause to be altered without the prior written consent of the Buyer, which consent may be withheld in Buyer's sole and absolute discretion. Notwithstanding the foregoing, after the date of this Agreement and ending upon the conveyance of the Property to Buyer pursuant to this Agreement, Sdier may use the Property for the storage of construction debris, the storage of construction related materials and supplies, and the deposit of dirt excavated or otherwise removed from the construction site on the Seller's property to the extent permitted by Section 7 .10 of the Development Agreement The restoration ,of the Property by Seller prior to the Close of Escrow shall be governed by Sections 6.29 and 7.10 of the Development Agreement(and Seller shall comply therewith). Contemporaneously with the execution of this Agreement, Buyer and Seller shall enter into the Easement Agreement attached hereto as Exhibit "C" with respect to the portion of the Property more particularly described in the Easement Agreement pursuant to which Buyer may use the property described in the Easement Agreement for the uses described therein including installation of a fence and stockpiling dirt on the Property to the extent permitted therein and by Section 7.10 of the Development Agreement. 3. NO REPRESENTATIONS BY SELLER ("AS IS" SALE). 3 .1 Buyer acknowledges that Seller is making no representations or warranties about the Property, express or implied; provided, however, that Buyer does'not waive Seller's obligations under Section 2.2 and Buyer does not waive Seller's obligations under applicable law to disclose to Buyer all material facts known to Seller about the Property (including facts in the Natural Hazard Disclosure Statement described below, whether or not required under applicable 118 law). Subject to the foregoing and Section 2.2. upon the Close of Escrowt Buyer S:ha:U take title to the Property in its then. •Clln"ent ~•AS 1s•• condition, subJect to Seller's obligations under Sec ion 6.29 ,of the. Development Agreeme.nt. __ ,otwiths.umdiog California Civil Code Section 1103 .1 (a)(9), SeUe:r shall deliver to Buyer~ with :r:eru;o able diljgenoe after the execution of this Agreement and at Seller's cost, a Natural. Hazard Disclosure Stat _ ment ( described .. in. California Civil Code Section l l 03 .2). · 4. ESCROW. 4.1 Agreement to Co.nstirute Escrow Instru.ctions. lb.is Agreement sham! oo ,nstitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for thatpwpose. 4.2 .Escrow Hplder'° The escrow shml be opened with. First American Title Insurmce Company, 2901 orth Ventura Road, Suite 175, Ven~ CA 9303 ·6 t'Esc-row Holder'1J within five (5) business days .after the ,execution of this Agreement by Buyer and Seller deposi.ting an execUited ,copy or executed coumerparts ofdrls Agreement with Escrow Holder~ 1bi document shall be considered. as the escrow mswctions between the parties, with such .further-instructions as Escrow Holder requires in orde -to clarify the duties and responsibilities of Esurow Holder. 4..3 CJo.se of EsCJQ..w. For the purposes of this Agreemen4 ncwse of Escrow', shall be the date on which a grant deed for the Pr-operty in favor of Boyer is recorded in the Official Records of the Ventma County Recmder1 s Office. Provid.ed all of SeUerTs and Buy1er's obligations. to be performed ,on. or before Cfose ,of Escrow have been performed and. aU. th conditions to the Clos of Esc~ow set forth ·-this Agreement have been. satisfied, escrow shall dose on or before the date 1hat is six (6) mondis .after the date on. which ~e final Certificate of Occupancy for the Project is issued. ec1osing Date"). All risk of loss or d~e }rith re-spect to the Property shall pass fr-om Seller to Buyer at the Close ofEscmw. Possessi.on.ofth Property shall be delivered to Buyer upon the Close of Es.crow. 4 -4 SeUel' Reguired to Deliver. Before the Close ofEscrow, SeUer man deposit into escrow the following: 4..4.1 ilntentionaHy omitted 4.4.2 A grant deed oonv ying th Property to Buyer, m. the form attached hereto as Exhibtt ~~e"'? dully ,e ecuted by Seller and acko.owledged. (the "'Grant Deed'~); 4.4.3 A California 59'3 •certificate and. federal rum-foreign affidav ·t (with respect to Seiter); 4.4.4 Any other documents reasonably required by Escrow Holder or the Title Co.mpany to be deposited by Buyer to ,carry out this escrow. 4.5 Buyer Required. to Detiver .. On or before the C~o~ of Escrow, Buyer shall deposit into escrow the following (properly executed and .. acknowtedge.d~ if applicable): 119 4.5. J An executed and acknowledged "Certificate of Acceptance" in the form attached to the Grant Deed (attached hereto as Exhibit "8 "): 4.5.2 The Purchase Price; and 4.5.3 Any other documents reasonably required by Escrow Holder to be deposited by Buyer to carry out this escrow. 4.6 Conditions to the Close of Escrow. Escrow shall not close unless and until both parties have deposited with Escrow Holder all sums and documents required to be deposited as provided in this Agreement. Additionally, Buyer's obligation to proceed with the transaction contemplated by this Agreement is subject to the satisfaction of all of the following conditions precedent, which are for Buyer's benefit and may be waived only by Buyer: 4.6 .1 The Building Department _of Buyer shall have issued a final Certi.fic~e of Occupancy for the Project described in the Development Agreement. 4.6.2 Seller shall have performed all agreements to be performed by Seller hereunder. 4.6.3 As of the Close of Escrow, the Property shall be in the a condition reasonably similar to the condition it was in when the parties executed the Development Agreement, subject to Section 6.29 of the Development Agreement; and 4.6.4 Title Company shall have issued or shall have committed to issue the Title Policy to Buyer, for the amount of the Purchase Price, showing fee title to the Property to be vested in Buyer subject only to the Approved Title Exceptions. If any of the conditions to Close of Escrow are not timely satisfied for a reason other than a default of Buyer or Seller under this Agreement, and this Agreement is tP.rmioateo, then upon termination of this Agreement, Escrow Holder shall promptly return to Buyer all funds (and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to Seller all funds and documents deposited by Seller in escrow and which are held by Escrow Holder on the date of the termination (less, in the case of the party otherwise entit,led to such funds, however, the amount of any cancellation charges .required to be paid by such party under Section 4.11 below). 4.7 Recordation of Grant Deed; Delivery of Funds and Possession. Upon receipt of the funds and instruments described in this Section 4, Escrow Holder shall cause the Grant Deed to be recorded in the office of the County Recorder of Ventura County, California. Thereafter, Escrow Holder shall deliver the proceeds of this escrow (less appropriate.charges) to Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all occupants. 4.8 Prorations. Property taices shall not be prorated as Buyer is exempt from property taices; Seller shall apply for a refund, if Seller has paid property taxes that are allocable to the period after the Close of Escrow. All property assessments shall be prorated between 120 Buyer and Seller as of the Close of Escrow based on the latest available tax infonnation. All prorations shall be determined on the basis of a 360-day year. 4. 9 Costs of Escrow. Seller shall pay the premium for the Title Policy (including the cost of extended coverage and the cost of any survey obtained by Buyer in connection with such extended coverage, and Seller's reimbursement of survey costs shall be a condition to the Close of Escrow). The escrow fees, the recording costs (if any), and any 0th.er closing costs or charges not expressly provided for herein shall be shared equally by the parties. 4.10 Brokers. Buyer and Seller represent to one another that no broker or finder has been engaged by it in connection with the transaction conte,nplated by this Agreement, or to its knowledge is in any way connected with such transaction. Each party covenants and agrees that any broker fee or commission, which may be due or payable in connection with the closing of the transaction contemplated by this Agreement through its dealings with that party, shall be borne solely by that party. Each party agrees to defend, indemnify and hold harmless the other party and its respective employees, agents, representatives, council members, attorneys, successors and assigns, from and against all claims of any agent, broker, finder or other similar party arising from or in connection with its activities relating to the sale of the Property to Buyer. . 4.11 Escrow Cancellation Charges. In the event'that this escrow shall fail to close by reason of the default of either party hereunder, the defaulting party shall be liable for all escrow and title cancellation· charges. In the event that the escrow shall fail to close for any other reason, each party shall pay one-half (112) of all escrow and title cancellation charges. 5. A TIORNEYS' FEES. In any action between Buyer and Seller seeking enforcement of any of the terms and provisions of this Agreement, .the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, not limited to taxable c1:1sts, reasonable attorneys' fees and reasonable fees of expert witnesses. 6. NOTICES. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and sent by first class United States registered or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express, duly addressed to the parties as follows: To Seller: Essex Moorpark Owner, L.P. 1100 Park Place, Suite 2QO San Mateo, CA 94403 Attention: John Eudy and Jordan Ritter And 121 To ,Buyer; Essex Moorpark Owner) L.P. 17541 Derian Avenue·~ Suite llO Irvine, CA 92614 Attention: Bob Linder City ofMoo.tpark 799 Moorpark Av,enue .Moorpark, California 93021 A ,..._, ,_; -• Cit,1 ).;,1,. ... ,.,.4 1'11W..-D'-ll0D. -•,;, n.~r Delivery of any notice or other ,communication hereunder shall be d remed made on the date ·indicated in the return receipt or courier's records as the date of delivery or as the date of first attempted delivery; if sent by mail or courier service. Any party may change its address for purposes of this Sootion. by giving notice to 'the other party as herein provided. . -- 7. A,SSIGNMENJ:. 'either this Agreement nor my mtere.st: herein may be .assigned by either party without the prior ·written. consent of the other party. 8. ENTIRE AGRE · MBl';IT.. This Agreement contains all of the agreements oftbe, parties hereto with respect to th .matters contained herelll!,. and all prior -or contemporaneous agreements or understandmgs, oral or writte~ pertaming to any .such matters are merg~d. herein and :s.ba.U not be effective for any pug:,ose. • o ,provision of this Agreement may be amended; supplemented or in. any way modified eXioept by an agreement in writing signed by the parties hereto or their 11especti ve uc-eessors in inte11est and expressly stating that it 'is an amendment ,of this Agreement · 9. COUNTERPARTS. This Agreement may be executed im an1 nUlllber of counteiparts, each ef which shall be an origin_al, but aU of which shall c-0nstitute one and the ame ms!lnunent. 10. EMAIL ,DELIVERY. This exe.cuted Agreement (and executed counterparts. •of this A_greemem:), may be deliveroo. by email. ll. TIME OF TIIE ESSENCE.. .nne is. ,of the essence of this Agreement .. 12. 1lill3;I}J!AR TIES~•. Nothing contained in this .Agreement, expressed or implied, is intended to confer upon any person,, odi:er than the parties heJ'!etO mtd their :suooessors .and assigns, any rights ,or .remedies under or by reason of this Agree,me,nt. 13. SEVERABIUTY. If any one or mor,e of the provisions contained in this Agreement S:ball for any reason be held to1 be inv,alid, illegal or unenforc.e.abl _ · in any respect by a court of competent jurisdiction, such in~alidity, illegality or unenfurceability shall. not affect any other proVIsion hereo( and this. Agreement :shall be construed as if such invali~ iUegal 01 · un nforceaJbl pr:ovisfon had. never been contained herein, unless such invalidity, iUegality or unenforoeohllity materiaIDJy affects t.b.e economic tenn.s, of the transactions c-0ntemplated by this Agreement o~ the .ability of ei 1ther party to perfur;m its, obligations twder this Agreement. In such case,-eiither party may terminate this Agreement and the escrow upon written notice to the other party given no later than teni(l0) business dlay.s after the party giving sue.ti aotice becomes aware 122 of such invalidity, illegality or unenforceability. In the event of such termination, all funds deposited with Escrow Holder by Buyer and any interest accrued thereon shall be returned to Buyer. 14. ADDITIONAL DOCUMENTS. Each party hereto agrees to perfonn any further acts and to execute, acknowledge and deliver any further documents that may be reasonably necessary to carry out the provisions of this Agreement 15. AUTHORITY OF CITY MANAGER. The City Manager of Buyer may give any and all notices, consents and terminations hereunde r on behalf of Buyer provided they are in writing. 16. DUE AUTHORIZATION/EXECUTION. Upon execution hereof, each party shall promptly provide to the other party reasonable evidence of its due authorization of this Agreement. 123 IN WITNBSS WHEREOF,. fue . parti es hereto have executed this Agreement as of the day and year first above written .. SELLER; ESSEX MOORPARK OWNER L.P .t a California limited partnershlp By : Esse oo,rpark GP, L P ;; a. California limited partnership•, its g~neral partner By~ Essex Management Corporation,. a California cotporatio,n, its general partn.er By: ________ _ Print.Name: ------Title : ~------- BUYER. CITY OF MOORPARK ~y: ____________ _ Attest Janice S. Parvin Mayor Maureen Benson, City Clerk APP OVED AS TO FORM: Kevin G. Ennis, City Attome 124 EXHIBIT "A'" LEGAL DESCRIPTION OE'JJIE PROPERTY All ,of PareeJ 1 A ,of i;-that certain Lot Line Adjustment No. 2005 .. Q.3 in the City of Moorpark, County ,of Ventura; State of California, recorded May 3, 2005 as Document No .. 20050503·- 01083 IS or ,oflfoial r-ecords m the Office of the County Reoor-der ofswd County,, being a. portion of Lot ~~r >.,. Tract No ,. ·UL" Rancbo Simi as per map filed in.Boo S P,ilge 5; of Miscellaneous Records (Maps) in the Office of said County Recorder. EXCEPT THEREFROM that portion conveyed to the City of Moorpark hy deed April 30,. 2009 as Instnunent No . 20090430-000693 ,89 of Official Rewrds of said CoWlity. ALSO EXCEPT· THEREFROM that portion lying northerly of the foHowing descri.bed line.; BEGINNJNG at a point in east .line of Paroel IA of said Lot Line Adjustment No·. 2005 :_0.3, dist.ant thereon North 292 .97 feet from the southeasterly comer 1he, 1eof; l st 'Thence, departing said _ as line South 89°38 3znwest 752.05 feet; 2nd Thence, South.27°2.0 34West 36.75 feet; 3rd Thence, South 89°03, 54"West293. 78 feet to a. point in the west line of said Par-eel lA. 125 EXHIBIT"BH FORM OF GRANT DEED (Attached.) 126 RECORD G REQUESTED BY .AND WHEN RECORD ' D I TURN TO : City Of Mooirpark 799 ' Moorpm: Avenue Moorpar-:Jc,. California ~no 12 Attention; City Clerk APN: ______ _ £SPACE A&OVE FOR RECORD R'S USE ONLY] GRANT.DEED 1'HE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS: The undersigned declares that this Gttmt Deed is exempt from Recording Fees pursuant ~o California Government Code Section 27383. Documentary Transfer 1'.ax is $0 (exempt; con.v•eyance to a public entity). ORV ALUABLE CONSID RATION receipt of which is hereby acknowledged the ESSEX .MOO RP ARK OWNER. L.P ., a California limited partnership (''Grantor"') hereby gr.ams to the CITY OF MOORPARK e'Grantee"), the land and located in the Coumy of V,entura, St.ate ,of California, more particularly described on E:diibJt A attached hereto and .incorporated herein by reference and all improvements thereon (collectiveJy t the ~•Property") .. IN WllNESS WHEREOF , Grantor has executed this Grant Deed as of th date set forth below. GRANTOR: ESSEX MOORPARK OWNER, L.P ., a California 1 • mited partnership By: Essex Moorpark GP. L.P .• a California limited partnership, its general partner By: Essex Management Corporation, a ·California corporation.. its gen _ ral partner B: ---------PrintName: ------Titl _: -------- 127 A notary public or other officer comp11eting this oertificate verifies only the identity of tb individual who signed the document to which this certificate • -attached, and not the truthfulness ; accmac or vailidi of th _ document. STATE OF CALIFORNIA COUNTY OF _____ _ On_______ ______, 2'0 __ befure me,_ __________ __.No,tary Public, personally appeared. ________________ _, who proved to me on the basis ,of satisfactory evidence to be the person(s) whose name(s) is/&1"e subscribed to the ·within insmnnent and acknowledged to· me that he/she/they executed the same in his/her/theiir auth_ori_zed caipacity(i,es), and that by his/her/their signamre(s) on the instrument the person(s). or the entity upon behalf of which the person(s) aoted, ,executed the instrument. -· I oertify mider PENAL TY OF PERJURY under the [aws of the· Stat,e of California that' the foregoin ,g paragraph is true and ,correct WITNESS my hand and. ,official seal. (affix seal in ahov,e space) 128 Exhibit A to Grant Deed LEGAL DESCRIPTION All of Parcel IA of in that certain Lot Line Adjustment No. 2005 -03 in the City of Moorpark, County of Ventura, State of Califorrua, 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 TIIEREFROM that portion lying northerly of the following described line; BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly comer thereof; 1st Thence, departing said east line South 89°38'32"West 752.05 feet; 2nd Thence, South 27°20'34West 36.75 feet; 3':'1 Thence, South 89°03 '54"West293. 78 feet to a point in the west line of said Parcel IA. 129 CERTIFICAT!EO ACC PTANCE (Califomia.Govemmenll de Sl.:ction 2728 Jl ) Thls is to, certify that the interut in real property conve}red by ·that certain Orant Deed dat~ -2Ql 7 ~·~ ~~ ¥,o(?rp~~ Qwne~, L.~. to ~e_ City o, Moorpark, which is a political corpora:tio~ is hereby accepted by the undersigned. officer on behalf of the City of Mo01park pumuant to the authority conferred by action. of the City of Moo ,rpark. on ___ __,. 2 017, and the grantee conse.nts. ·to recordation thereof by its duly authorized ,officer. A motacy pubHc or other officer completing this certifi cate: verifies only the identi ty ,of the mdividiual who signed ·lhc docwnent to whioh this certiticaie is attached, and not the 1:ruthfuln.ess, accuracy. or validity o.f1hat d-0cmnelll State ofCalifomia County o, ------- Steven Kueny, City Manager ) ) On . befof . me. ------------" _____________ _.., (insert name and tide of the officer) Notary Public, personally appeared __________________ ~ \vho proved to me on.the basis of satisfactory evidence to be· theperson(s) whose name(s), is/ar subscribed to, th within mstrum,ent and acknowledged t6 me that hdshe/they executed th _ same in his/her/then-authorized capac1ty(ies), and that by his/J,le£1their signatuiie(s) on the instmme,nt the p rson(s), o,r the ennty upon behalf of whwh the person(s) acted, ,e ecmed. the inst:rument. I certify under PENAL TY OF PERJURY under the laws of the State of California. thait t!he foregoing paragraph is tme and correct WITNESS my hand and. official seal Signatme _____________ ~ (Seal) 130 EXHIBIT'C" FORM OF EASEMENT .(Attached.) 131 RECORDING R · QU ESTE D BY AND WH RE ORD ED MAIL TO: .E sex Moo ,rpark Owner. .P. 11 00 Park Prace, Suite 200 San Mateo, C · 94403 Attn: Lega] (Space Above FoT Reconle:r's Use) EASEME , AGRE THI EASEMENT AGREEME (the Agreement") is entered in o as. of _____ 2017, by and between the ·~y of Mo_orp,ar~ a municipal corporation ("Grantee"), and Essex Moorpark Owne:rt L.P.J a California limited _partnership(' Grantor"). RECITALS Grantor i the owner of the real property located in the G'ty -of Moorpark., County of Ventura, tate of California., as more particula.rly described in Exhlbi 'A'' attached hereto and incorporated herein by reference (th "Prop rty'?- Grantee and Grantor ent red into, a Development Agreement dated as of _____ =---·' 2017 (the "Deve opment Agreemenf'), and an Agreement :for Purchase and Sale and · scrow Insmictions dat.ed as of ____ -2017 (the ••Purchase . greement'1). Grantee requires access to a certain area: of the Property for it elf, i employee-s~ its contractors, and any and a11 ,pennitte and. invitees of Grantee and any and a:U of the.fr respective pennittee and'., vitees, including> without limitation an thjro party developer and/or its agents. contractors and subcontrato. j and all of their respective agents, employees and repr :entatives (collectively~ the "Grantee's Agent '? prior to the c o mg oftbe purchase and sa e and conveyance of the Property to Gtantee .in accordance wi:th the Purchase Agreement for the purpose of stockpiling soil on th area b wn on Exhibit 1•B" her o (the ''Stockpi le Area"). Gran or desires to grant to Grantee a. exclusive access easement for rantee and Grantee's Agents to enter the Stockpile Are-a and an easement for the limited pwpose of stookpi]ing soil thereo and fencing the Stockpile Area. Such i1 shall be -ubject t,o removat pursuant to the terms of thi Agc,eement In consid-eratioo of rantee being gnmtcd access to th Property as described in thii.s Agreem nt G ru tee and Gran or he reby agre _ as follows; o Incorporation. ofRecitals. Capitali1.ed Terms. 'fhe Recitals ar incotporated herein as part of this greement. In addition capitalized terms not otherwise: defined herein or i11 the · ecita[s slia] l hav·e the meaning . et forth in the eve]opment Agreement and Purcha e Agreem t 132 o Grant of Easement. Grantor hereby grants to Grantee for the benefit of Grantee and Grantee's Agents, a non-assignable but exclusive easement (the "Easement") to e nter the Stockpile Area and to use the Stockpile Area for the sole purpose of depo siting and storing of clean, imported soil (i ncluding the right of access for all necessary personnel , equipment and materials but excluding any right to take any other action on , in , over, under, or around the Stockpile Area) and fencing the Stockpile Area and for no other uses or purposes. Grantee and Grantee's Agents shall not use any other portion of the Property in any manner which impedes, interferes with, disrupts, or increases the cost of any grading, construction access, construction, excavation, construction staging, the storage of construction materials and supp li es, or the s tockpiling of soil and other materials by Grantor on s uch other portion of the Property. If Grantor, in Grantor 's reasonable judgment, determines that Grantee has breached the covenants in the preceding sentence, Grantor shall have the right to suspend Grantee's access to the Stockpi le Area from the Property until the breach has been cured to Grantor's reasonable satisfaction. · · • T ermination. The Easement and this Agreement shall automatically tenninate on the earliest of (i) the date which is six (6) months after the date on which the final certificate of occupancy is is sued for the Property, if escrow closes pursuant to Section 4.3 of the Purchase Agreement, (ii) any eai:l ier termination of Purchase Agreement unless resulting from default thereunder by Grantor, or (iii) the date which is twelve (12) months from the date on which the final certificate of occupancy is issued for the Property, if escrow does not close pursuant to Section 4.3 of the Purchase Agreement (collectively, the "Termination Date") unless escrow does not close due to a default by Grantor under the Purchase Agreement; provided, however, Grantee's indemnity and other obligations under this Agreement shall survive any such termination. o Removal Obligation. Not later than the thirty (30) days following the Termination Date (unless terminated pursuant to subsection (3)(i) above), Grantee shall remove all equipment, materials, and stockpiled soil brought on to the Property, the Stockpile Area, or both, by or at the direction of Grantee. Grantee, at its sole cost and expense, shall promptly restore the Property, the Stockpile Area, or both, to the condition that existed thereon prior-to Grantee's or Grantee's Agents entry on to the Property, the Stockpile Area, or both. In the event that Grantee fails, within the time required by this Section 4, to restore the Property, the Stockpile Area, or both, to the condition that eitisted thereon prior to Grantee's and Grantee's Agents entry on to the Property, the Stockpile Area, or both , Grantor may restore the Property, the Stockpile Area, or both to such condition and Grantee shall reimburse Grantor for all costs and expenses incurred by or on behalf of Grantor in connection therewith. o Hazardous Materials. Grantee shall take all actions necessary and required to assure that any and all soil brought to the Prop erty (whether by Grantee or Grantee's Agents) for placement in the Stockpile Area shal l not contain or be affected by any "Hazardous Materials" (as defined below) such that (i) it cannot be lawfully placed for storage on the Property or (ii) it would adversely impact soil, groundwater or environmental conditions present on or und er the Property or otherwise require response action by Grantor. The phrase "Hazardous Materials" as used herein shall mean any flammable explosives, radioactive materia ls, asbestos in any form which is friable or could become friable, hazardous waste, tox ic substances or other related materials whether in the form of a chemical, element, compound, solution, mixture or otherwise. 133 For the purpose ofthi Agreement, Hazardous aterials shall include, but n t b fmit d to ubstan -defined as ''hazardous substances'\ hazardou materials/' "contaminants,' "pollutants,,, 1"11.aZard.ous wastes., or ' toxic subst.ances' ( a) i (i.) the Compr,ehen ive Environmenta] R sponse, Compensation and Llahmty Aot of 1980t as amended by the µperfund Amendmen and R a.uthoriza ion Act 42 .S .. Section 9601 et eq., (ii) the Hazardo11s Materials Transportation ct, 49 . . . Section l801 et seq.> (iii) the Resouroe, Conservation and Reco ery Act> 42 .S .. C. Section 6:901 et eq.J {i ) the F,ed raJ Water Pollution Con rol Act, as amended . · 3 U .. C. _ tio·n 1251 e seq., (v) the Clean Air Act,. ~3 U. . • ecti n 740 1 et seq.> (vi) the To ·c Substances Qntrol Act, 15 U .. C. Section 2601 et. seq.> ,(v1i) the · afe Drinking . ater Act 42 U.S.C. ection 300f et seq .. , (vii") ections 25117 and 25316 of th Califomfa Health Safety Cod~ (ix) applicable sta or loca l law, or (x) the rules, orders or regulatio:ns adopted r proposed or in the publication promu gated pur uant to said laws; or (b} in any reported decision of a state o federal court .. • Gr:a.ntee s In:denmfn. Grantee, o the fullest extent permitted by law. hall b solely responsible for and pay for any and an los and/or damage ,(i) to the Property, the tockpile Area, or boili (and any property adjoining the Property, the StockpiJ Property or bod ), or (ii) ari ing out of r in _ nn c · on with the use~ storage or transport ofl azardous Materials on. the Property and/or Stockpile Area.1 including but not limited to the cost of any remediatio or third party claims related ther t-0, arising wholly or in part from or in conn.ection with the use of the Prope_rty, the tock.pile Area, ,o.r both pursuant to (or in · iolat.ion of) this greement. · rante · shall keep the Property, the Stockpi[e Area, or both, free and clear of all environmental liens, mechanics and ·1ateria]men's Uens and cJaims. for labor and/or mate.rials arising out of an activity upon. th Property, the tockpile Area, or both by Grantee or Grant 's Agents. Grantee shaU protect, defend, indemnify and hold Grantor and its members, managers partners , agent , offi.cers,. directors, employees and affiliates (i~Gr-antor Indemnified Pam "') fr,ee and hmm.less against all claims, liens, action losses UabiUties, damage~ costs and expenses (inciudin.g but not limited to reasonable attorney• fees and cost and including any claims arising in connec · on with the u· e, torage or transport of Hazardous Materia]s on the Property and/or Stockpile Ar a> including, but no Ii nited to the co t ofany remediation or thlrd patty clai.ms :related thereto). collectively, ~cl aims'1 of whatever kind or nature. incfod:ing, but not limited to, consequential damages arising in connection with the rights gran~ed under or any b:r,ea.ch of Grantee's or ran.tee> . Agen covenants contained intlris Easement ,except to the tent caused by Grantor's gross negligence or willfu] mi :on _ uct. Th foregoing indemnification shall survive th.e termination of th· Agreement. o CompUance, 1th Law . Aoo s to and use of the . roperty, the tockpile Areat or both by·Grantee and rantee' gents and others shall be in strict compliance .with all applicable laws, statu es, ordinan.ces, rules and regulations including, without limitation> thos of the Uiiited. · tales and the city county and s.ta:t, in which the Property is locaied, and any agency of any f the fov going (the "laws;;), and Grantee hall defi nd indem_nify and. hold Grantor and its membe ,, manager partn rs agents> officers, directors, employees and affi iates fi: and hrum.less against an penalties, charges and damag · includin& without limitation, consequential damages, costs and expen e (in luding, without limi ation, attorneys fees and e pen ) of whatever kind or nature, im osed for any vio]ation or alleged vi lati • n by Grantee or any Gran Agcn of any such Laws. Grante hall be r, ponsibl for obtaining and complying w·th the conditi ns and requirements of al l pennits. and approval required under a 1 134 applicable Laws in connection with Grantee and Grantee's Agents' activities on the Property, the Stockpile Area, or both. o Insurance. At its sole cost, Grantee shall either mainta in its participation in the insurance program administered by the California JPIA (which includes liability coverage of $1,000,000 per occurrence, with accrued aggregate limit of $1,000,000) or maintain equiva lent insurance, and will cause Seller to be named as additional insured thereunder, with respect to Grantee's entry on and ·use of the Property. At its sole cost, Grantee shall deliver to Grantor reasonable evidence of such insurance prior to entering the Property or the Stockpile Area. o No Re presen tations or Warranties He r eunder. Grantee understands that neither Grantor nor any Grantor Indemnified Parties have made or make any representation or warranty, express or implied, as to the suitability of the Property or the Stockpile Area for Grantee's use in connection with the License granted under this Agreement. All information provided by Grantor with respect to the Property or Stockpile Area has been provided as an accommodation and solely for Grantee's use ·in connection with its performance of this · Agreement without any repi:esentation or warranty as to its accuracy or completeness. Neither Grantor, nor any Grantor Indemnified Parties or their respective attorneys or adv isors or any other person will have any liability to Grantee or any of Grantee's Agents under this Agreement for information provided or the exercise by Grantee or Grantee's Agents of any rights granted either hereunder. • No W aiver. It is understood and agreed that no failure or delay by Grantor in exercising any right, pov~er or privilege hereunder shall operate as a waiver thereof or the exercise of any other rjght, power or. privilege hereunder. The provisions of this Agreement may not be waived or ameoiled except by the written agreement of Grantor. o I njunction. Grantee further understands and agrees that in the event of any breach of this Agreement by Grantee or any of Grantee's Agents, Grantor would be •irreparably and immediately harmed and could not'be made whole by monetary damages. Accordingly, Grantee hereby agrees that Grantor, io addition to any other remedy which it may have at law or in equity, shall be entitled !o injunctive relief to prevent breaches of this Agreement and/or specific performance to compel compliance with this Agreement. o Ass ign men t. This Agreement is binding on the successors and assigns of the parties hereto. Notwithstanding the fQregoing, Grantee may not assign its rights hereunder without the prior writt~n consent ofGrantor in its sole d iscretion. o Mi scellaneous. This Agreement and any and all matters arising under, from or relating to this Agreement shall be governed by and construed io accordance with the internal laws of the State of California without regard to choice of laws principles. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original , but all of which, togetber, shall constitute one and the same instrument. A facsimile, scanned or photocopy signature on this Agreement, any amendment or waiver hereto, or any notice delivered hereunder shall have the same legal effect as an original s ignature. This Agreement may not be amended or modified except in writing executed by the parties hereto. 135 {signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and y ar first set forth above. GRANTOR: E SEX MOORPARK OWNER .P ., a California limited partnership By: sex Moorparlc Gf L.P a Califomm limited partner-shipt Its general partner By: Essex Management Corporation a California ,corporation, its gene1'81 partn r By: Title,: Print Name: Granter otioe Informal· on : Esse . Moorpark. Owner, I...P. ,c/o Essex Proptl'rty T:rust 1100 Park P'lace,. Suite 200 San Mateo a 94303 ttention: Legal Department GRANTEE: er y OF MOORPARK, a muni.cipai[ corporatioi)\ By:·----------- Janice S. Parvin. Mayor Orantee Notice Information: City of Moorpa :k 799 Moorpark Avenue Moorpark, California 9302] Attn · City Manager 136 EXHIBIT "A" LEGAL D ESCRIPTION OF THE PROPERTY All of Parcel IA ofin that certain Lot Line Adj ustment No. 2005-03 in·the City of Moorpark, County of Ventura, State of California , recorded May 3, 2005 as Document No. 20050503- 0 I 08315 or official records in the Office of the Co unty Recorder of said County, being a po1tion 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 C9nveyed to the City of Moorpark by deed Apri l 30, 2009 as lnstrumenfNo. 20090430-00069389 of Official Reco rds of said Co unt y. 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 southeastedy comer thereof; 1•• Thence, departing said east line South 89°38'32"West 752.05 feet; '.?"d Thence, South 27°2 0'34Wes t 36.75 feet; 3rd Thence, South 89°03'54"West293.78 feet to a point i n the west line of said Parcel IA. 137 EXHIBIT "B" STOCKPILE AREA (See attached diagram.) 138 I I I ' I ' ,II ,I II 11 I L • I r I ' I I I j I I I l j • I I I I I I I I I tr-_____ ... 11 II ,1: I i I l : ·I!: n : f: \ I -..'! I '' · .. '; p 139 12853•0018\2044326'1'1 .doc EXHIBIT ''Du MAP FOR RELOCATED POWER LIN ES (Attached .) 140 , I ' ... . •' 'J! • . . ' \ ., .... . ' -4-141 EXHIBIT "E" AD D RESSES OF PARTI ES To City: City of Moorpark 799 Moorpark Avenue Moorpark , CA 93021 Attn: City Manager T o D eve loper: ESSEX MOORPARK OWNER, L.P. Attention: John D. Eudy 1100 Park Place, Suite 200 San Mateo, CA 94403 With required copies to: ESSEX PORT FOLIO, L.P. Attention: Jordan Ritter 1 100 Park Place, Suite 200 San Mateo, CA 94403 and ESSEX MOORPARK OWNER, L.P. Attention: Bob Linder 17541 Derian Avenue, Suite 1 10 Irvine, CA 92614 12853·00 18\2044326v1 .doc 142 EXHIBIT ,.i F" FORM OF AFFORDABLE HOUSIN1G1 AGREEMENT {Attached.) 2853-0CH8\20'14326v1 .doc Exhibit F Page 1 of 1 143 Reco,rding Requested By: CITY OF MOORPARK. 799· Moorp~rk Avenue Moorpark, California. 93021 Attention ~ Cify C!ierk OFFICIAL BUS INESS Document ernUtleq to ·free record i ng: per Go/1/er-nment Code Sections 16103 and 27383 SPACE ABOVE THIS LINE FOR: RECOIROSR'S USE AFFORDABLE HOUSING AG ;REEMENT by and between CffY O:F MOORPARK and :ES,SEX MOORPARK OWN !ER, l .P. Dared as of ,, 2017 -~--- 144 AFFORDABLE HOUSING AGREEMENT THIS A FFORDABLE HOUSING AGREEMENT (this "Agreement") is to be effective as of _______ , 2017, regardless of the date of actual execution hereof, and is by and between the CITY OF MOORPARK; a municipal corporation ("City"), ESSEX MOORPARK OWNER , L.P., a California limited partnership ("Owner"). REC ITALS A. The City and Owner have entered into a Development Agreement dated _______ , recorded as Instrument No . _______ in the Official Records of the County of Ventura on _________ (the "Development Agreement") pursuant to which Owner will construct a residential development consist ing of 200 apartments on app roximately 10.57 acres (the "Property"), described more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference, which is located within the City of Moorpark. B. General Plan Amendment No. 2004 -05 ("GPA 2004-05") Residential Planned Development Permit No. 2012-02 ("RPO "), and Zone Change No. 2004-04 ("ZC ") provide for the development of the Property in such manner and the construction of certa in off-site improvements in connection therewith (the "Project"). The GPA, ZC, RPO and Mitigation Monitoring Program, as amended , are collective ly referred to as the "Project Approvals". C. The RPO requires that the apartments described on Exhibit No. 2 attached hereto (located· as described on such exhib it) be affordable·and available to households with income that does not exceed specified leve ls, as described on Exhibit No. 2, for the Term (as defined in Article 1 below) of this Agreement. D. The Development Agreement requires that Owner and Affordable Housing Owner maintain each and every one of the Affordab le Un its at all times in the same manner as the market rate units, including, but not limited to the quality and maintenance of flooring, window coverings , appliances, heating and air conditioning systems, storage space and type , and the number and location of requi red parking spaces . E. The Development Agreement requires that this Affordable Housing Agreement be executed by Owner and delivered to City for recording, and that this Affordable Housing Agreement not be subord inate to any liens (except for property taxes and assessments not yet due). F. As permitted by the Development Agreement, Owner may apply for approval of an air rights subdivision such that the Affor,dab le Units .may be conveyed to and separately owned by a sing le entity affiliated with Owner (as described in the Development Agreement) and used solely as affordable rental units in accordance with this Agreement. Such affiliated entity is referred to herein as the "Affordable Housing Owner". 145 NOW, THIIERE IFO IRE . in consideration of the· mutua:I covenants and undertakings set forth herein and other good .and valuable cons'deration, tlite receipt and sufficiency of which are hereby acknowledged, the City and Owner · ereby agree as follows: ARTICLE 1 DEFINITIONS AND IINTERIPRETATION 1.1 Definitions. Capital iized terms used her,ein shaH have the fo lowing meanings . "Affordable 1Housing1 n Lieu Fee" sha:11! mean ~he annual fee paid to the City n exchange for the Owner and Affordable Housing Owner not being obligated to provide four (4) additional Affordable Low Income Unirts i'n addition to the 50 Affordable Units requi1red by this Agreement. "Affordable Housing OWner' shall mean the single entity to, which the, sixte,en (16)' Very Low Income Units and twenty-four (2.4) ,low Income Units are oonveyed if tax exempt bond ilfinanaing and low income housiing 'tax c-redits ar,e used with respect to ~he ProJ,ect described in Section 2.1 bebw; however! until Owner _conveys such Affordab :le U'nits to Affo1rdable Hous,·ng Owner. and 1if Owner never conveys. the Affordable Units to Affordable Hous,ing Owner, and to the ,extent of its ownership of the ten (10), Units described i n S,ection 2 .1 and E~hibit No. 2. Owner shall be the liAffo:rdable Housing Owner' as wen as ~he "Owner''. · "Affotdabf'.e Renr shall mean the rent described in Section 2,9; subject to Section 2.10. '"Affordab e Units" shaH · mean the rent~restficted d:WeHing uni'ts for Low Income Househo,lds, Very llow Income IHouseho ds and Moderate Income Hous,ehol1ds described ·n th i s Affordable Housing1 Agreement. '"Agreement" shaH mean this Affordable :Housing Agreement 'City" shall mean the Ciity of Moorpark ~ Ca11ifornia, a muni.cipal oorporatfon. "County" shall mean Ve·ntura County. "County Med·an Jnoome'' shal : mean the Median Income adjusted by actual household size, as published annuallly by the Department of Housing and Community Development (HCD) of the State of California for the County, which Med i an Income tev,els. shaH be adjusted concurrently with publication ,of adjustment of the same by HCD1 (or if 'HCD discontinues such publication, then such reasonable replacement publication as may be se!eded by City in good faith). ''Density Bonus" shall mean the density bonus giranted by the Ctty to Owner in connection with the Project pursuant to, the P.ro1ect App 1rovals , which ,r-equires the Developer to construct the Project, and als10 requires that at least twenty percent (2:0%) (i.e ", 40 units) of the 'total dweJling units in the Project be rented at an Affordable Rent to Very Low Income househo!ds (Le,, 50% of County Median i ncome) and Low In.come 146 households (i.e ., 80% of County Median Income) and an additional five percent (5%) (i.e. 10 Units) of the total dwelling units in the Project be rented at an Affordable Rent to Moderate Income households (i.e. 120% of County Median income). "Deve lopment Agreement" shall mean that certain Development Agreement daied _____ , 2017, recorded substantially concurrently herewith in the Official Records of the County of Ventura. "HCD" shall mean the _Department of Housing and Community Development (HCD) of the State of California. "Initial Rent-Up " shall mean the period between the issuance of a C!,!rtificate of occupar)cy for the first residential unit in the Project and "Stabilization" (as defined below). "Low Income" or "Lower Income" shall mean a household income that does not exceed eighty percent (80%) of the County Median Income, adjusted for household size appropriate to the Unit. The household income amount for Lower Income households shall be based on the amount most recently published by HCD as the Household Income Limits for Ventura County ("HCD Income Limits") or such successor information in the event the referenced publ ished information is no longer available. "Low Income Household " or "Lower Income Household " or "Low Income Tenant'' means individuals or households qualified ·on the basis of a "certification of tenant eligibiliiy" as certified by such individual or.household, who have a gross income which does not 13xceed Low Income, adjusted for household size . "Low Income Units" means Units rented to Low Income Households. "Moderate Income" shall mean a household income that does not exceed one hundred twenty percent (120%) of the Coun_ty Median Income, adjusted for househo ld size appropriate to the Unit. The household income amount for Moderate Income households for any year shall be based on the amount most re9ently published by HCD as the Household Income Limits for Ventura County ("HCD Income Limits") or such successor information in the event the referenced published information is no longer available. l "Moderate .Income Household " means individuals or households qualified on the basis of a "certification of tenant eligibility" as certified by such individual or household, who have a gross income which does not exceed Moderate Income, adjusted for household size. "Moderate Income Un its " means Units rented to Moderate Income Households. "Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of its rights, powers and responsibilities, or any successor in interest to any portion of or interest in the Pro ject or Property. 147 "Project" is the residential development described in RPO 2012-02 consisting of up to 200 apartments located on the Property, together with structures , improvements, equipment, fixtures, and other persona l property owned by Owner or Affordable Housing Owner and located on or used in connection with all such improvements and all functionally related and subordinate facilities, and all improvements required by the Project Approvals . "Project Approvals " is defined in Recital B above. "Property" shall mean that real property in the City of Moorpark, California described on Exhibit No. 1. "Stabilization" shall mean the time at which the Project achieves ninety percent (90%) occupancy for ninety (90) consecutive days. "Term • shall mean from the date of recordation of this Agreement until the later of: (i) the date that the Property is no longer zoned for any residential use and cannot be used for any res idential 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. "Un its" shall mean residential dwelling units. "Utility Allowance" shall mean the utility allowance set forth in the chart attached to this Agreement as Exhibit No. 2 and referred to in Section 2.9. "Very Low Income" shall mean household income that does not exceed fifty percent (50%) of the County Median Income, adjusted for household size appropriate to the Unit. The household income amount for Very Low Income households shall be based on the amount most recently published by HCD as the Household Income Limits for Ventura County rHcO Income Limits") or such successor information in the event the referenced published information is no longer available. "Very Low Income Household" means ind ividuals 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 singu lar form of any word used herein , includ ing the terms defined herein shall include the plural and vice versa. The use herei n of a word of any gender shall include correlative words of all genders. 1.2.2 The words "hereof," "herein," "hereunder," and words of similar import shall refer to this Agreement as a whole. 148 1.2.3 All of the terms and provIs Ions 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 severa l 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 th is Agreement conflict, the prov ision more beneficial to the City, as determined by the City Manager, shall govern. ARTI CL E 2 AFFORDABLE HOUSI NG IMPLEMENTATION A N Q RENTAL RESTRICTION PLAN A ND USE OF PROPERTY 2.1 Purpose of Restrictions. A . The provisions of this Agreement are intended to impose affordability restrictions and househo ld income restrictions on the Affordable Units in the Project, specifically there shall be sixteen (16) Very Low Income Units , twenty-four (24) Low Income Units, and ten (10) Moderate Income Units , all as more particularly set forth on Exhibit No. 2 . B. However, Owner may obtai n Federal low income housing tax credits and tax-exempt bonds (collectively, "Affordable Housing Financing") to finance the Project , which will require that forty {40) of the Affordable Units be restricted for rent to Very Low Income Households during · the .periods set forth in the Internal Revenue Code , as the same may be modified by law applicable to the low income housing tax credits (the "Compliance Period and Extend Use Period ") and applicable to the tax exempt bonds (the "Qualified Proj ect Period "). At the end of whichever is the last to expire of the Compliance Period _and Extended Use Period and the Qualified Project Period, Owner shall rent the ten (10) Moderate Income Units to Low Income Households consiste nt with the requirements of this Agreement. Upon the the last to expire of the Compliance P.eriod and Extended Use Period and the Qualified Project Period, the provisions of this Agreement shall be appl icable and the number of Very Low Income Units, Low Income Units, and Moderate Income Units shall be consistent with Section 2 .1.A. above and Exhibit No. 2. At the time the Project is no longer required to comply with Affordable Housing Financing, the City, Owner and Affordable Housing Owner shall in good faith , and consistent with applicable law and this Agreement , prepare a plan to transition the Affordable 149 Units so that the number of Very Low Income Un its, L-0w Income Units,. and Moderate 11ncome Units in the Project is as requir1ed by Section 2.1A above and IEx,hibit No,. 2 and that there are Very Low Income Households, Low Income, Households, and Moderate Income Househo ds -occupying the· AffOrdabl 'e Units consistent wi h Section 2.1.A. above and Exhibit No,. 2 in the sho:i-test possib 11.e ·Hme . . 2.2 Agreement to be· Recorded: Priority. Owner and Affordable· Housing Owne r re;p 1resent 1 warrant • .and covenant that they wiill cause thi s A•greement to be recorded :in the Offif:ce of ~he County Recorder of Ventura County,, Ca'lifornia, and that. this Agreement shal l be se.nior in priority to any llien 1 ,enoumbra:nce or other matter of record except as ,expressly .approved wn writing by Gity. The OWner ,or Affordable Housing Owne shaH pay al !I fees .. and charges •in connection w1lth any such reoordation. 2 .. 3 U:se of the· Property·. Owner 1represents , warrants, and covenants to develop and operate th~ Project and flrope·rty as a munifamHy residentia l! rental property and uses incidental thereto and for no other purposes .. Owner and Affordable Housing Owner agree "that the Affomab!e Units. shall! have the :same or better ameni;ti'es ,(in type , quality and numbe r) as the m.a:rket~rate· units in the Project ,(as determined by the Community IDe,velopment Director), and shalil be !located as described •On the site pl:an attached to Exrnbit No. 2.. Such amenities for the Affordable Units shalll include ,. without limitation • .ai 1r oonditioning1heating, p,lumbing and el 'ectrical fixtures, ,garbage djsposal, floorin,g:,. cabinets , counter tops t trim , bui llt-in dishwasher, c1othes washer and dryer1, sinks 1 bathtub, solar or soar stub out, water heater , buiJt-.:in ov,en,, microwave•, stove, bathroom fan· (the most quiet 1modell),, garag·e door opene :rs , d90-rs and door hardware , and floor a1nd window coverings (all to the same extent provfded for ·the mar~et rate un its). Owner and Affordable !Housing Owr:1er shal:I promptfy nolify City in writing upon any relocation of an Affordab e Unit under this, Ag.reement (meaning change n the des·g nated/inten:d:ed househol'dl :income level,. not an actual change in the fixed ,locations of the Affordable Units. which constitute a sepa rate subdivided parcelt and are fixed as shown at the end of Exh1b :it No 2). and each such noti.ce shalll indlu:de the basis ·for such 1re l ocation and ffle location of suoh 1rel 1ocated Affo:rdabfe Uni:t(s): howe,ver, the ten (10) IMode~te Income Units t,o be owned by the Owner of the mar·ket-rate Units shall be randomly dispersed among its Units in the portion of the Project owned by the Owner consistent with Exhibit: No . 2. Ow.ner and Affordable Housi111g1 Owner iurther agree not to convert the !Project o:r any part thereof to any type o.f common interest develop:me111t, fo r..sa.le ,condominiums, community apartme·nts 1 planned development, stock cooperative, hoteJ, motel , or any type of congregate care or a.ssisted I iving fa.oUity (but lhe for,eg:oing shaH not prohib iit t he air rights subdivision and conveyance desClifbed in Recital F above). Owner and Affordable Housing Owneir ag,ree that they shall not knowingl 'y pennit any o,f the Units in the Pmjeci: to be used on a transient basi,s and shall no-t rent any un·:t for a period of i!e,ss. than thirty (30) days. At no fme shall any of the· Affo.rdabfe Unit·s be r-ented to aini em;plio,yee a.gent 1 officer, c-ontraci.or of any owner of any portion of the Property or IPiroject or of any company affi iliated with any such owoer or to any such affiliated compan:y. 150 2 .4 INT,EINTIONALLY OMITTED, 2.5 !Ru lles. l!n addition to the conditions and 1res.tr,i ctions to be contained in leases or rental agreements as :pm,vided in this. Agreement, ong·oing operation of ~he Project w,ill be subject to reasonabl·e house rules , policies an~ regulations :issued from time to time by Owner an,~ Affordab !e Housing Owner and approved by Gity which approva :sha lll not be un re·asonably withhe d , oonditioned t or delayed (111Rules?) .. Owner and Affordable !Housing Owner shall submit such !Rules to City during1 the lni~ial Rent-Up fo 1r t he· City's .approva ~1 wh ich wm not be withheld 1 conditioned or delayed . Annua ~ly, Owner and Affordable Housing Owner sha I subm ':t ,any amendments, modifications or changes. to such Rules to the City at feast forty-five ,(45) days pri.or to their pro,posed e·ft"eotive· date and aH o,f such amendments, mod·flcations and ch anges sha :11 be subject to the City 's, pri or written consent, which wm not be withheld.; ,condio ,oned m de,1ayed . llf City does. not ,consen , City sha.11 specify th.e reasons in wnting so, that Affordab e Housing Owner can re·vise· the amendment(s), modificati on(s} or change(s) and re - submit them for Oily ap..prova l1, wh ich wrn not be with:held 1 condilio.ned or del'ayed. In addition , Owner and Affordable Housing Owner shall submit to the City on am annua :1 basis a ce r tifi.cation that the Rules p evio ustry submitted t o City , as amended, remain in effect (with a oo ;py of the Ru es and any amendments). If app licab : e,, this, Agreemeo _ shall be c-0ns 1istent wi flh any Extended Use Agreement enter-ed into petween Owner or any affihat:e of Owner and the . Californ ia Tax Credit Atlocat· on Comm ittee. 2 .6 Single: Owner. Exoept: for the· ten (10) Modera.te !Income Units (wh i ch wiH be Low Income Units until the fast to ,end of the Comp,liance Period and Extended Use Per;iod .and the Quafified Project Period! as set fo.rth in Section 2.1.:B. above ! an d willl be ,owned by the owner O'f the market-rate Units),, all of the Affordable Units shall be and r,emain owned by the Affordable !Housi ng Owner (an .affiliate ·Of the Owner ,of the mark.et- rate Units). Such ten (10) Units (Moderate, or Low Income until the rast to e , d of the Gompllianoe Pe,riod and !Extended Use Pe:riod or the Qual:ified Prrqjeot P·e:riod), may be owned by Owner but shall be subject to, t his Agreement. No Affordable Unit may be sold separately. 2.7 Affordabl~e Units Genera ffl ly .. . 2.7.1 Allocation/0:isper.saJ of~ffo~~~ble Units . As _se forth o~ Exhibit No. i , the Affordable Units shaH be randomly d ispersed throughout the Project and as described in Section: 2.3 above , Owner and Affordab e Housing Owner sha I pmmptly notify City m writing of any change in t he des1ignated income l'evel of any Affordable Unit. 2.7 .2 Access 'b1le Comp f ant Units. Four (4) of the nineteen ,(19) one- bedroo m one-bat h affordable Low and Viery Low fncome units shall lbe compl ia nt with all laws rega rding disabled persons (,ndlud ing , Without Hmitation , the .Ame ri cans with Disabmt ies Act) and shall be rese.rved fo r a nd occupied by persons el ifgible fo1r such · accommodatio ns, to the· extent ~here is a. ·qua: ified acoessible Low or Very Low Income person ready to, occu py such uni. Owner and .Affordable Housmng Owner shall maintain a waiting list fo :r the affordab !le accessible-oompUant un its, shall prompUy deliver a copy 151 'thereof to City and shalll thereafter delirver a -oopy ,of the re,viseo list to City whenever the Hst changes . Should there be a qualified Low or Very Low Income prospective tenant desiring t-o rent such a unit but alt such units ar:e rented, Owner and Affordable Housing Owner shal1I add such pr,ospeotive tenant to the ·waiting list Jor the affordable accessib 1e- oompliant units. At the ea~iest possible time a Low or Very llo~w Income non-access·ible compliant affordab lle unilt becomes avai ! able ; the non-access ~ble Low or Very Low l:noome tenan , who occupies ~he affordable accessible oompl:iant unit sha 'II be relocated to, another affordable unit in orcte,r to allow the qualified disabled household to ocoupy the accessible ,compliant: unit. owner and Affordable Housing Owner shaH include a provision in the non-aooessible compl'iant affordable ease for ,any aoc-essible-compliant affordable, unit that the non-accessible Low or Very Low income tenant agrees. to be ;relocated at Owner's or Affordable H!ous:ing Owners cost, as soon as a non-accessible compl .iant uni becomes availabl'.e·. While· any of the four {4) affordable aocessible- oompliant units are not being leased to disabled persons (du:e to unava1ilabiliity of such persons to, Jease), tlhe app il icable Affordable Unit shall be l'eased in accordance with this Agreement At all times , Affordable Hlousing Owner shall keep City ;info.limed in writing1 of the inoome level appl icable to each accessible compUam unit. The fixed locations of Ile Affordabre -Units, shall be as shown on the :site pla ,n attached to, Exh'bit No•, 2. The ;acoes.sibte compliant uni"'ts shal , be ,consistent with accessibility design orite:ria established by the State of California and Owner and Affordable Housing Owner shall pro:mpUy make any changes to such units required by new laws ·Or changes in laws. iReasonabl 'e accommodation shal l be made, as, may be requested by specific Low or Ve'ry Low llnoome disabled tenants in such units, to provide features :such ,as,·smoke a ,arms wtth f11aslhing lights., fo 1r instance, if ·requested by hea 1ring :impailied Low or Very Low llnco:me· tenants ·nan aocess 11ble comp,liant unit 2.7.3, Affordabfe Hous1og In Lieu Fee. 2 .7 .3.1 ·• In addrno:n to the Affordalb i e Units herein described, Owner and Affordable Hous·ng Owner shall pay (and be j,oiintty and severally Hable for) a single annual in llieu fee for having iirrevocably elected not to provide fouir (4) additiona ·I Low Income units (the "Affordable Housing In Lieu Fee"). The modificat,io,n ,of affordability le·vells for Affordable Housing Fiinancing purposes (as described n Section 2.1, 2.12 and Exbjbtt: ~o. 2), shall not affect the foregoing. 2.7.8.2 The Affordable • Housing In L!ieu fee shall initiallly be Forty Seven Thousand Five: Hundred and No/100 Dallam ,($47,500 .. 00) if paiid on or before January 11 2019 , If the initial1 payment is not paid by Janua,ry 1, 2019,, it shal'I increase by two percent (2%) each year above the prior year amount. Sim i"latl¥, all subsequent an 1rnual payments shall incr,ease by two percent (2%) of the previ ous year's payment Payments shalll be· made on March 10 of ~he first ,ca endar yea,r i,n which one or m,ore residential unit iin the: Project has theretofore been occvpied , and on or befo,~e 152 March 10 of each subsequent ca lendar year. If March 10 falls on a Saturday, Sunday, or City Holiday, then payment shall be due on the City's next business day. A late payment charge (constituting liquidated damages) equal to ten percent (19%) of the payment due shall be added to payments received three (3) days or more after the due date-as stated herein or when a deficient check has been given for payment, and the parties hereby stipulate and agree that it would be very difficult and impractical to determine the damages suffered by City, as a public entity, due to late payments. Payments received more than ten (1 O) days after the due date shall, in addition to the ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the due date through and including the date the payment is received by the City. In the event of a sale, transfer, assignment of any type or any portion of the Project or Property by Owner. or Affordable Housing Owner to any other entity not owned in whole or in part by Owner, the fee amount referenced above shall be increased based on the new value of the Property as if it had been reassessed by the Ventura County Assessor and not exempt from the payment of new property t~es. The calculation shall provide the City 0.095% (equivalent to $950.00' per $1 million of assessed value) of the assessed value or such higher percentage of the total new property taxes if the -City portion has been increased by action of the State of California or by a statewide initiative or referendum. (For example, if the sale results in a value of $50,000,000.00 then the annual fee to the City would be $50,000,000.00 X .00095 = $47,500.00, or if the City portion of the property taxes hi;is been increased by the State of California on a statewide initiative or referendum then the amount would increase). In the event the payment to the City under _this calculation would be less than the Initial Affordable Housing In-lieu Fee Amount, inclusive of any 2% adjustments applied as of the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount . shall continue ·until such t im e as the calculation in this paragraph would yield a higher annual fee. 2.7.4 Preference Policies. To the extent permitted by applicable state and federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list for the Affordab le Units shall be maintained from wh ich vacancies shall be filled. The waiting list shall be established through a fair process for the selectiQn of the next eligible households to fill the vacancies allowing for priority for City of Moorpark residents to the extent permitted by applicable state and federal law. Details of this process shall be submitted in writing to the City for review and approval prior to the issuance of the first building permit for this project. Additionally, Affordable Housing Owner shall submit to City an annual report, no later than January 30 of each calendar year for the pervious calendar year, describing the vacancies filled from households on the list, total vacancies filled and the number of households on the l ist. 2.7.5 Occupancy Reporting. As specified in Section 2 .12, Owner and Affordable Housing Owner will advise City on a quarterly basis in writing of the number of Affordable Units occupied by Very Low, Low and Moderate Income Tenants by delivery of a certificate in the form specified by the City, which is attached hereto as Exhibit No. 3 , which shall include a statement as to whether or not the tenant was a City of Moorpark resident who on the waiting list and was given priority. Any reporting 153 schedule less frequent than quarterly must be express ly approved in writing by the City Manager. 2.7.6 Unit Classification . An Affordable Unit occupied by a Very Low Income Tenant, a Low Income Tenant, or a Moderate Income Tenant shall be deemed, upon termination of occupancy by such tenant (whether voluntarily o r involuntarily), to be continuously occupied by a Very Low Income Tenant, a Low Income Tenant, or a Moderate Income Tenant, as applicable , until re-occupied other than for a temporary period (not to exceed 60 days), at which time the classification of the Unit" shall be redetermin.ed (provided that upon such reclassification , Affordable Housing Owner m4st remain in compliance with !hi!! Agreement). Owner and Affordable Housing Owner shall use commercially reasonable efforts to prevent such temporary periods from exceeding sixty (60) days. Owner and Affordable Housing Owner. will also obtain and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No . 3 attached her~to , for each Very Low, Low and Moderate Income Tenant. Owner and Affordable Housing Owner shall make a good faith effort to verify that the income declared by an applicant in an income certification is accurate by reviewing any one or more of the following documents, which shall be provided by the applicant: (a) A pay stub for the most recent pay period ; (b) An income tax return for the most recent tax year; · (c) An income verification form from the applicant's current employer; (d) An income verification form from the Social Security Administration and/or the California Department of Socia l Services if the applicant receives assistance from either of those agencies; or (e) If the applicant is unemployed and has no tax return , another form of independent verification is needed. In addition to the above-referenced income certification , eligible Very Low and Low Income applicants for the ADA compliant units shall submit a letter from a physician or other document acceptable to the City, Owner and Affordab le Housing Owner which confirms the accessibil ity needs of the applicant. 2.7 .7 Lease Provisions. The Owner and the Affordable Housing Owner shall include provisions in all signed leases or rental agreements for all Affordable Units which authorize the Owner or Affordable Housing Owner, as applicable, to immediately terminate the tenancy of any tenant occupying an Affordable Unit where one or more of such tenants have mis represented any fact material to the qualification of such an ind ividual or household as a Very Low, Low or Moderate Income Tenant and/o r for qualification for occupancy of an Affordable Unit, and Affordable Housing Owner and Owner shall reasonably enforce such termination rights (i.e., Affordab le Housing Own~r or Owner, as app licable, shall exercise them and not waive them). Each lease or renta l agreement for an Affordable Unit shall also provide that the tenants of such Affordable Unit shall be subject to annua l certification or recertification of income, as required by 154 the City, and shall be subject to rental increases in acco rdance with Section 2 .1 O of this Agreement. · 2.7.8 Management Diligence. Owner and Affordable Housing Owner shall use commercially reasonab le efforts not to allow any rent -ready Affo rdable Unit to remain vacant. 2.7.9 Administration by City: Administrative Fee. City shall appoint a staff person to oversee the implementation of this Agree ment, and shall notify Owner and Affo rdable Housi ng Owner in writing of the name and phone number of such staff person and any replacements . On or before the first day of February of each year during the Term of this Agreement, commencing after the first resident[al occupancy of the Project, Affordable Housing Owner and Owner shall pay to the City for the administration of this Agreement (and be jointly and severally liable for) an annual fee equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the larger of (a) or (b) b_elow: (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 Ange les/Riverside/Orange County metropolitan area. The calcu lation shall be made by copy ing such CPI for the month of October to the CPI for the previous October. · (b) The annua l percentage amount pa id to City by the Local Agency Investment Fund (LAIF}, calculated as follows: T he sum of the quarterly effective yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most recent four (4) calendar quarters divided by four (4). In the event the CPI or LAIF is discontinued o r 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 .1 O Lease Provisions. The provisions relating to certification and recertification of income in the form of lease or rental agreement used by the Owner or the Affordab le Hous(ng Owner for the lease or rental of the Affordable Units shall be subject to review and app roval by the City, the approval of wh ich shall not be unrl:lasonably withheld , conditioned, or delayed. If the lease or rental agreement provisions specified in this Section are not approved or disapproved within thirty (30) days after submittal to City, they shall be deemed approved. 2 .8 Rent-Up Periods and Occupancy Procedures . 2.8 .1 For initial rent-up only, for each ten (10) units rented in the Project (i.e., both Affordable Units and other units), at least two (2) must be Affordable Units which comply with this Agreement. 155 2.8.2 During the Initial Rent-Up, the Very Low ·Income Units occupied by Very Low Income households, plus those Units held available for occupancy by such tenants, shall be equal to or exceed sixteen (16) units (subject to Section 2.1 above). 2.8.3 During the Initial Rent-Up, the Low Income Units occupied by Low Income households, plus . those Units held available for occupancy by such tenants, shall be equal to or exceed twenty-four (24) units (subject to Section 2 .1 above). 2.8.4 ·During the Initial Rent-Up, the Moderate Income Units occupied by Moderate Income households, plus those Units held available for occupancy by such tenants, shall be equal to or exceed ten (10) units (subject to _Section 2.1 above). 2.8.5 In connection with the Initial Lease-Up of the Project, Owner and Affordable Housing Owner will adopt outre ach programs to locate qualified tenants for the Project and shall establish such procedures for occupancy, renta l, and rent grievances as ll'.lay b e reasonably required by the City. Not later than ten (10) days prior to the commencement of marketing, Owner and Affordable Housing Owner shall prepare and submit to the City for reasonable approval a marketing and outreach program which shall contain, among other things, the following: how a potential tenant would apply to rent a Unit in the Project, including where to apply , applicable income limits and rent levels; support documentation needed such as pay stubs, tax returns, or confirmation of disability, if applicable, a description of procedures Owner and Affordable Housing Owner will follow to publicize vacancies i n the Project, including notice in newspapers of general circulation, including at least one Spanish-language newspaper and maili ng notices of vacancies to or contacting by telephone potential tenants on the waiting list maintained by Owner and Affordable Housing Owner. Notices shall also be given to organizations in Ventura County which provide referra ls or other services to persons with disabilities. 2.8 .6 In the event that any Affordable Unit is rendered unfit for occupancy (including by damage or destruction), then until the Affordable Unit is repaired/reconstructed (so that it is available for leasing in compl ian(:e w ith this Agreement), Owner or Affordable Housing Owner, as applicable , shall pay the City a single fee of $10 (which shall increase by $2 every five (5) years) per day until the Affordable Unit 'is placed back in service except that such fee shall not be payable for so long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build the Affordable Unit in question, as shown by reasonable evidence provided to City. 2.9 Affordable Rent. 2.9.1 Monthly rent charged to Very Low Income houseliolds 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.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom un it , 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 156 .2 9.2 Mm,thly r-ent charged to I ow Income Tenants shaU be no greater than thi rty perce nt (30%) of si-xty percent (60°/o) of Co unty Media n Income . adjusted for family siize ap:pr,opriaJte for t he Unit,, less the Utility Allowance. "Family siz,e appropriate to the UnitJI, as shown on ExhibiLNo. 2 ~s, defined in Section· 50052 .S(h) of the Ca~ifom·a Health and Saiety Code to be .2 per sons for a 1' bedroom un"t, 3 persons for a 2 bedroom Ul'l il and 4 persons fo ll' a 3 bed room unit. 2.9 .. 3 Monthly rent cha:rg:ed to Moderate Income Tenants shalil be no greater than ~h ·rty percent (30%) of one hundred and ten (110%) of County Median ncome . ad j ust ed for family size app roprtate for the Unit,, Less the Utility Allowance. "Fa m ily si ze appropr,iat:e to t he Un it'', as shown on Exhibit No . 2 i s defined in Secfon 50052 . .:5(h) of fhe California Health and Satety Code to, be 2 pe 1rso ns for a 1 bedroom unit, 3 person s for a 2 bedroom unit a n d 4 perso ns for a. 3 bedroom unit. 2.9 .4 Utility Al l!ow ances wm be adjusted ann ually using the most ,current "Allowances for Tenant Furn ished Utilities, and Other Services" (fonn HUD-5266 7) b -s -d on A -artm·-ent1W -1k Up• unit· ·ty· ne ,as ·p. osted and.· U "d ,-1 -d·' -' ' -'11·1 .. b··. th, A ·, _a _ e _ ._ p __ . . _ _ a _ _ . . . t"' _ _ _ _ _ _ _ _ _ _ _ p al e ann ua y y . e rea Housin1g Authority of the, County of Ventur.a based on the foHowing applianceslutillit ies to be p mvided to the units : Nialural Gas. -Heatiing1, oooking1, water heating Water Sewer, Trash, qther E,tectric al 1lowance {for liglhts and other ,electric uses) · 2.1 O Alte1~aliye Affordabl~ R~m Call~ulati:t:ms. If the 1requ mr,eme.nts or practices ,of the Califbmia Tax Credit A!llocatlion Committee (C TAC), the Caliromia Debt Lim it Alloca ion Committee (CDLAC), any te nder as Bond owner,, or other entify ·or entities sim ila dy associated with anticipated fina nci ng ,of ttle oonstriuction of this project . or fub.ire, prudent refinancing of this p.rojecit, utiHzes definitions , sources of i nformation 1, etc •• o,ther Ulan those which have been herei n deffined and uflirzed in calculating Affordable Rent, t hen the procedure or input which produces the lowest affordable rent, will p!reva il. 2 .. 111 llncome Recertification: Rent !Increases. 2.11.1 Owner and Affordable Housing Owner shall cause ttle income of each Tenant of an Affordabl e Unit to be re-ce:rtified o n a n annual basis on the, a:nni;versa:ry date of 1each sudh tenant's, ,initia f renta l date._ This recertifica1Uon shall lbe submitted in writing to the Ciity wit hin thi!rty (30) days ,of such action . 2.1 1.2 Rents for the Affordable Units may be increased only once per ca lendar year, concu r rently with or subsequent to, any increase in the County Meqia n Income when and as determined by HCD. The rents charged for the Affordable Un its folbwin g such an incr,ease , or upon a. '{acan cy and new occupancy by a Very t ow , Low o r Moderate ncome Tenant:, as, the case may be,,, shall not exceed the al lowab le ent calculated i n complia nce wm, Sections 2.'91 2 .12.1 , 2.12.2. and 2.12.3, below. 157 2.12 Increased Income of Occupying Households. On ly afte r the last to expire of the Compliance Period and E)(lended Use Period or the Qualified Project Period with respect to the Very Low Income Units and the Low Income Units rented to Very Low Income Households, and at all times for the ten (10) Moderate Income Units regard less of whether they are rented to Moderate Income Households or rented to Low Income Households, the following shall apply: 2.12 .1 If, upon income recertification, the Owner or Affordable Housing Owner, or both, as applicable , determines that the household inc9me of a Very Low Income Tenant has increased above the maximum allowable household income level of a Very Low Income Tenant, but remains equa l to or below that of a Low Income household, then , except as provided below in this Section 2 .12, th e Owner or Affordab le Housing Owner, o r both, as applicable, shall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of sixty percent (60%) of the County Median Income for the s ize household appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to the occupants the reof. 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 occupanc:y by) a Very Low Income housel)old. 2 .12.2 If, upon income recertification, the Owner or Affordable Housing Owner, or both , as appl icable, determines that the household income of a Very Low or Low Income Tenant has increased above the ma ximum allowable household income of a Low Income T enant, to not m ore than Moderate Income, which is one hundred and twenty percent (120%) of median income , then the Owner or Affordab le Housing Owner, or both , as applicable, s hall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent (30%) of one hundred ten percent (110%) of the Gourty Median Income fo r the size household appropriate to the unit, less the utility allowance. In this event, the next available unit that was previously a Moderate Income unit must be rented to or held vacant and available for immediate occupancy by a Very Low or Low Income household, as the case may be, at an affordable rent (1/12 of 30% of 50% of Median Income, in the case of a Very Low ·income unit, or 1/12 of 30% of 60% of Median Income, in the case of a Low Income unit, both of which are net of the utility allowance). · 2.12 .3 If, upon i ncome re -certification, the Owner or Affordab le Housing Owne r, or both , as applicable, determines that the income of a tenant occupying one of the Affordable Units has increased and now exceeds that of a Moderate Income household, the Tenant is no longer eligib le to rent the unit, and the Owner or Affordab le Housing Owner, or both, as app licable, shall not increase the rent but shall provide written notice to the Tena nt to vacate the unit w jthin s ix (6) months . If an appropriate unit is ava ilable to substitute for said unit, and the •substitute unit" has not been one of the Affordable Units, prov ided that said substitute un it is of the same configuration and size as the unit currently occupied by the now ineligible T enant , the Affordable Housing Owner may request authorization from the City Manager or his/her des ignee to substitute the like unit for the Affordable Unit, and cause the ren t on the s ubstitute un it to be at the same level of affordabil ity as the unit that was occupied by the formerly 158 eligible Tenant, and the City Manager shall use good faith efforts to respond within thirty (30) days. Notwithstanding the foregoing , any such Tenant shall have the right to request a recertification of income (not later than sixty (60) days prior to the date they are supposed to vacate). If the recertification shows that income is not greater than the maximum allowable househo ld incom e lev~I due to a documented voluntary reduction of income, then the notice to vacate shall be withdrawn . Until the last to end of the Compliance Period and Extended Use Period or the Qualified Project Period , the foregoing prov isions shall not apply to the units rented to Very i,ow Income Households, but shall continue to app ly to th e ten (10) Moderate Units that are to be rented to Low Income Tenants during such period (and owned by the entity which also owns the market rate Units). Until the last to end of the Compliance Period and Extended Use Pe riod or the Qualified Proj ect Period, Owner and Affordable Housing Owner shall comply with laws and regu lations, and any separate/additional recorded restrictions or "Regulatory Agreement" required by the Affordab le Housing Financing. Owner and Affordable Housing Owne r shall promptly deliver to City copies of all Affordable Housing Financing regulatory agreements or similar agreements restricting Units in the Project, and shall notify City and all affected tenants in writing of the expiration of the Bond Period at least one ( 1) calendar year (but not more than fourteen (14) months) prior to expiration of the Compliarice Period and Exter:ided Use Period or Qualified Project• Period, whichever expires later, of any effect on the affordability level of their Affordabie Units. Additionally, Owner and Affordable Housing Owner shall notify City in writing of any re-syndication or extension of tax c redit financing and any defeasance or refinancing of bond financing as soon as they become reasonably likely. 2.13 Specific Enforcement of Affordability Restrictions. 2.13.1 Owner and Affordable Housing Owner hereby agree that specific enforcement of Owner's and Affordable Housing Owne r's agreements to comply with the allowable rent and occupancy restrictions of this Agreement is one of the reasons for the City's issuing the Project Approvals and entering into the Development Agreement. 2.13.2 Owner and Affordab le Housing Owner further agree that, in the event of any breach of such requirements, potential monetary damages to City, as well as prospective Very Low, Low and Moderate Income Tenants, wou ld be difficu lt, if not impossible, to evaluate and quantify. 2.13.3 Therefore, in addition to any other reli ef or damages to which the City may be entitled as a consequence of the breach hereof, Owner and Affordab le Housing Owner agree to the imposition of the remedy of specific performance against it in the case of any event of default by Affordab le Housing Owner in complying with the 159 allowable rent, occupa ncy restrictio ns or any other provision of this Agreement. Nothing herein sha ll impair City's rights to liquidated damages under Section 6.4 be low. 2.14 [INTENT IONALLY OM ITT ED] 2 .15 Reporti ng Re qu irements . 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 , whic hever occurs later, Owner and Affordable Housing Owner shall prepare and submit to the City, on a quarterly basis, written reports, setting forth the rental activity for the previous month , a nd the current total number of Affordable Units occupied by tenants . 2 .15.2 Commenc in g with the f irst full calendar quarter after ·the last pe riod covered by monthly reports pursuant to .Section 2.15.1 , Owner and .Affordable Housing Owner sha ll prepare and subm it to the City, on a quarterly basis, not later than the 15th day of each ca lendar quarter, a Certificate of Continuing Prog ram Compliance in a form substantially similar to Exhibit No . 4 attached hereto, stating: (a) the number and pe rcentage of Affordab le Units in the Project· which were occupied by Very Low, Low and Moderate Income Tenants, or held vacant and available for oqcupancy by such Tenants during said period; and -{b} that to the knowledge of the Affordable Housing Owner, no default has occurred under tt:ie provi sions of this Agreement; and (c) such other information as may be requested in writing by the C ity Manager. · 2.15.3 Owner and Affordable Housing Owner shall prepare and submit to the City, on an annual bas is, a report in fo rm and substance reasonab ly satisfactory to the City, not later than Ma rph 31st of each year for the preceding calendar year, summarizing the vacancy. rate of the Affo rdable Units in the Project on a inonth-to- month basis for such calendar yel:lr. 2 .15.4 Owner and Affordable Housing Owner shall also deliver to City from time to time any other information about the Affordab le Units and the rental thereof as may be reasonably requested in w riting by City wit hin ten (10) days after any such written request. · ART ICLE 3 OPERATI ONS 3.1 [INTENTIONALLY OMITTED] 3.2 Management Agent. 3.2 .1 The Project shall at all tim es be managed by the Owner or the Affordable Housing Owner or a single third-party management agent with demonstrated ability to operate, and experience in operating, res idential hous i ng incl uding restrict ed affordable housi ng, in a manner that will provide decent, safe and sanitary residential facilities to occupants thereof, including experience in comply ing with reporting requirements and occupancy restrict ions s im ilar to those imposed upon the Project by 160 the ter:ms of this Agreement. (There may only be one manager for the entire Project at any one time .} 3.2.2 The Owner or t he Affordable Housing Owner, directly or through an affiliate, may be the "manager" of the Project. The Owner and the Affordable Housing Owner may reta in on-site personne l and other consu ltants and service providers to assist Owne r and the Affordable Housing Owner to operate the Project effectively and in compliance with the provis ions of this Agreement and state and federal law. 3.2.3 In the event that Owner or Affordable Housing Owner seeks to appoint a replacement management entity to manage the Project, they shall advise the City of the identity of any such qualified management agent not later than thirty (30) days prior to the effective date of such appointment. The Owner and the Affordable Housing Owner shall also submit such additional information about the background , experience a nd financial condition of any proposed management agent as is reasonably requested by the City. 3.2.4 Upon the City's written request , the Owner and the Affordable Housing Owner shall cooperate with the City in an annual review of the management practices and status of Project. The purpose of each annua l review will be to enable the City to .determine if the Project is being ope rated 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 e nsure effective day-to-day operation of the Project and cooperation among the City, the Owner, the Affordable. Housing Owner and the management agent: 3.3.1 Day-to-day operation of the Project will be under the di rect supervision of an on -site management agent, or a resident manager who will report to the management agent. 3.3.2 There will be regula r meetings as necessary between the Owner, the Affordable Housing Owner and the management agent for the purpose of reviewing policies, procedures, res ident relations and budget control. 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 Arrangeme nts. Owner and Affordable Housing Owner shall provide for adequate on -site staffing of management personnel to manage the Project in a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner shall provide such security services as may be necessary or appropriate for the Project. A ll 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 161 procedures which conform with equa l opportunity laws . All personnel emp loyed at the Project will receive training specific to Owner's policies and procedures . 3.5 City Ability to Modify. If the Project is not time ly completed in accordance with the Schedule of Performance in the Development Agreement, the City may modify the development standards and to change the General Plan designation and zoning of the Property, and Owner and Affordable Housing Owner hereby waive any rights they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No . 2004-04 ("ZC 2004-04"). 3.6 Annual Community Services Fee . Upon the issuance of a Zoning Clearance by the City for occupancy of the f irst unit of the Project , and on each anniversary thereof, Owner and Affordable Housing Owner shall pay to City a single comn:iunity services fee of Eight Thousand Dollars ($8,000.00) increas·ed by two percent (2%) on each anniversary of the Operative Date (as defined in Section 18 of the Development Agreement). ARTICLE 4 MAINTENANCE 4 .1 Maintenance, Repair, Alterations. Owner arid Affordable Housing Owne·r shall maintain and preserve the Project and the Property in good condition and repair and in a prudent and businesslike manner. If any portion of the Project is damaged, restoration of the damaged .improvements shall be made by Owner and Affordable Housing Owner to a condition as good as existed prior to the damage. Owner and Affordable Housing Owner shall complete promptly and in a good and workmanlike manner any improvements which may now or hereafter be constructed as part of the Project and pay when due all claims for labor performed and material furnished therefor. Owner and Affordable Housing Owner shall comply with all laws, ordinances, rules , regulations , covenants , conditions, restrictions ,_ and orders of any governmental authority now or hereafter affecting the conduct or operation of the Project and of their businesses on the Project or any part the reof or requiring any a lteration or improvement to be made thereon. Owner and Affordab le Housing Owner shall maintain grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any adjacent areas owned by either of them) in good and neat order and repair. Owner and Affordable Housing Own'er hereby agrees that City may conduct from time to time through representatives of its own choice who are property identified as agents of the City, upon reasonable written notice and subject to reasonable security and safety procedures and rights of tenants in possession, on-site inspections and observation of such records of Owner and Affordable Housing Owner relating to the Project and the Property as City reasonably deems to be necessary or appropriate in order to monitor Owner's compliance with the provisions of th is Agreement. Owner and the Affordable Housing Owner shall assure that each Affordable Unit receives the same level of maintenance and repair and upgrades or improvements as all other units in the Project. 162 The Owner and the Affordab le Hous ing 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 un it. p. Preventative regular inspections of common areas and equipment as well as regular schedules (daily, wee kly, monthly , quarterly, etc.) for maintaining the same. Th is will include maintenance of exterior areas to keep grounds free of graffiti , litter, trash and paper. Parking areas will be mainta i ned 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 dis infectant 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 pai nting and carpet cleaning or replacement in individual apartment units shall be based on need, substantiated by the annual physica l inspection, or as occupancy changes , or as the Owner and Affordable Housing Owner or their management agent may otherwise deem necessary. g. Owner and Affordable Housing Owner will employ a maintenance work order procedure in the Proje<;t to adequately document requests for work and promptness within which the work has been comp leted . 4.2 Disclaimer. Nothing in this Agreement shall make City responsible for making or comp leting cap ital repairs or replacements to the Project or the Property or require City to expend funds to make or comp lete the same . ARTICLE 5 TERM 5.1 Term of Agreement. This Agreement shall remain in full force and effect for the Term . ARTICLE 6 DEFA ULT AND REMED I ES 6 .1 An Event of Default. Each of the followi ng shall constitute an "Event of Defau lt" by the Owner hereunder: 163 6.1.1 Faill'ure by the Owner •or Affordable Housing Owner to duly perform. ,comply with and observe the conditions of Project app,rov.at, conditions , terms., or ,covenants of the Deve '!opment Agreement or th ·s, Ag1reemem , if such fa .lure remains uncur:ed ~hirty (30) days. after written notice of such fai ure. from the City in the manner 1pr,ov1ded here~n or,. with respect to a default that cannot be cured within thirty (30) days, if the Owner or Affordable Housmg Owner fails to commence such cure withi:n such thirty (30) day period or thereafter fai 'ls to diligently ,and continuously proceed with such cure to, compretion . ,In no event shall the City be precluded firom exeiraising remedies if an IEvent ,o,f Default is not cured within ninety {90) days after the first notice of de~ult is gi.ven or :such .longer period as, may be agreed upon by both pairties in writing . If a different pe.riod or notice requirement ·s specffiled unde1r any other section of this Agreement,, d'len the specific prov,ision shaH control. 6.1 .. 2 Fa i lure by Owner and the Affordable Housing ,Owner to cure any default under Seotion 2 .1 S with in fifteen ( 15) business da.ys after written notice ·of such default by City. 6 .11.3 Any r:epresentaitio:n or warranty oontained in thiis Agreement or 1in any application, financial statement, certifica.te •Or report submitted to the City by Owner or Affordable Housing owner proves, to have been incorrect. in .any material respect when made , if such ·fai !llure :remafns uncured thirty (30) days after wraten 1notioo of such failure from City to Owner in the manner provided herein or, w;ith respect to a default that cannot be cured within thirty (JU), days, if the Owner and the Affo~dable _Housiing Owner fa.i'I to commence s:uch oure within sue thirty ,(30) daiy par,iod' or thereafter fa.ii o dilig,ently and continuous lly proceed with such cure to complefon. 6.1.4 A oourt having j urisdiction shal have· made or rende~ed .a decree o order (a) adJudging ·Owner or Affordable IHousing Owner to be ban 1kru 1pt or insolvent; (b) approving .as properly filed a petition seeking reorganization of Owner or . Affordable Housing Owner or seek1ing arny .arrangement on beha itf of the Owner under the bankruptcy la.w or any othe:r appllicable debtor, relief law ,or statute of the United States. or of any ·state or other julisdiction which is not dismissed within sixty (60) days after fil i ng ; (c) appo,inting a :rece iver, trustee, l1iquidator, or assignee for the benefi t of creditors of the O·wner or Affordable Housing Owner in bankrup,tcy ,or insolvency ur for any ,of its. properties whictl (or who) is not discharged within sixty (60) d~ys after Its. appointment; or (d) directing the winding up or liquidation of the Owner or Affordable Housing Owner1 provid i ng , ~ owever, ·that any such decree or order described in any of the forego ilng 1subsections sha I have •oontinued unstayed or undischarged for a period ,of ni·nety (90) days. 6 .1.5 The Owner or Affordable Housing Owner shall have assigned lits assets for the benefit of its credi.tors or suffered a sequestration ,o,r attachment or ,execution on any substantial part of i:ts property, unless ·the· property so assigned 1 sequestered , attached , 01r executed upon shall have been returned or released within ninety ('90) days after such event (unless a lesser time per,fod is permitted for cure hereunder) 0 1r prior to sa l!e pursuant to such sequestration, attachment or execution. 'If the Owner or Affordable Housing Owner is diligently working to obtain a. return or 164 release of the p:mperty and the City's interest hereunder is not iimminently th eatened in the City's re·asonable business judgment, then the City sha lll not decla~e a default under this subsection. ·6.1 ~e The Owner or Affordable Housing Owner shall have volluntarily suspended its business lor a penod of. thi 1rty (30) consecutive days or dissolved and a subsequent owner has, not assumed the oblligatio,ns of Owner or Affordable Housi ng Owner (if applicable} in accordance with this Agreement. 6.1. 7 Should any default be declared by any lender under any loan document or deed of trust relating t,o any loan made in oonne.ction with the Project or Property, which loan is secur-ed by a deed of trust or other iinstrument of ecord and is not cured within the appl'ioab !le cure period , if any, granted ·n the app1icabl:e oan documents: 6.2 Liens. 6 .2.1 , This Agreement shall be sen·or in prio 'ity to any lien or encumbrance on the Property (other than the Deveilo,pmerrt Agreement) and a I l iens andl encumbrances sha·II be subord ·nate and s1.;tbject to this Agreement, regard fess of actua l date of r,ecordation. The City shalll •cons[der in good faith,, reasonable· modifications of this Agreement. ·typicailly requ i red by secured lenders _and commonly lmown as "mortgagee protectioriU ' provisions; however1 in no event shall any such modification sho .rten the tenn of this Agreement or ,contain or requi:re any .subordiination of pro~sions ,of ~his .Agreement. 6.2.2 Owner and Affordable Housing: Owner shall! pay and promptl.y discharge when due , at their cost and e)qpense , a I Hens, encumbrances and charges upon their respectiive i nterests in ·1he Project or the Property., or any part thereof or interest there:iln ( e,xce,p•t the lien of .any moirtgage, deed of trust or other recorded # instrument securing any construction or permanent financing1 for the Prqj:ect, which sha.11 , in any event be junior and subordinate to th·s Agreement); pr,ovided that the ex,istence of any mechan ,ic''s, laborer's , materialman's supplier"s 1. or vendor's llien or nght thereto shall not constitute a violation of th is SecUon if payment is not yet ·due under the contract which is. ~he foundation thereof and i,f such contract does not postpone payment for more than forty-fi,v:e (45) days after the· performance thereof. Owner and Affordable Housing Owner shall l have the 11igh to contest in good faith 1he validity of any such lien 1 encumbrance or charge ., provided 'that within ten (1i0) days after service of a stop notice or nine,ty (90) days after reco :rd i ng of a mechanic's Hen, Owner or Affordable Housing Owner sha.H deposit with City .a bond or other secur,ity reasonably satisfactory to City in such amounts as City shall reasonably require·, but no mme than · he amount required t.o .re jlease ~he lien under California law and proviided further that Owner or Affordable Housing Owne rr sha:II thereafter dliligenU:y proceed t.o cause such lien, encumbrance or charg,e to be 'll&mov,~d. and disdharged, and shall,, in any event, cause such lien, encumbranoe or ,charg:e· to, be removed or disohargedl not later than sixty (60) days 1Prior to any foredfosure sa ,e. If Owner or Affordable Hous·ng Owner shal 'I fai 11! either to remove and discharge any such lien, ,encumbrance or charge· or to 165 deposit security in accordance with the preced i ng sentence if appficab 'fe j then 1 in addition to any otJher right or remedy of G"ty , City may, but :shall not be obl iigated to , discharge the same,, without inquil,ing into the vardity of su:ch Hen , ·encumbrance or charge nor into the e>dstence of any defense or offset thereto, eiU1er by paying the amount claimed to be due ,, or by ip:roou t ing the discharge ,of such liien , encumbrance o:r charge by depositing in a court a bond or ~he amount ,or otheTWise gi~ing security for such claim, in such manner a.s is o;r may be prescribed by Jaw. Owne r and Affordable Housi1ng1 owner shall , immediately upon wrUten demand thereof by City, pay to City an amount equal fo. all costs and expenses incum~d by City in oonnactio,n with the e·xerc i se by City of the fbreg:oing right to discharge any :such l1·e:n, encumbrance or charg·e. To the extent not paid , a.II costs and expenses pai:d by ~he City :shall be a Hen on the !Property pursuant to Civil Code· Secbon 2881 . 6.3 Costs of Enfomement. If any Event of Oefau llt oocurs t and 1is, continuing , C"ty may employ an atto:r:ney or attorneys to protect its rights hereunder.. Subject to California CirVi l Code Section 17 17, the non -p.revaUing party promises to pay to the prrevailing party, on demand, ~he fees and ,expenses of such attorneys and all other costs of enforcing the obHgations secured hereby including wittiout limitati,011, record mng fees , .recewer"s fees and expenses, and all other •expenses of whatever kind o nature 1 ' incunred by the· p:r,evai lling party in ,connection with the •enforcement of this Agreemem, whether or not sue , enfo:rcement includes the filing of a lawsuit. 6.4 IEnfor~mant of Jbi.s Agreement: Remedie.s . Uipon the occurrence of any Event of Default by Owner or Affordable Housing Owne:r, City shal lll be entitled to enforce performance of any obr1gation of Owner ,o,r Affordable Housing Owner arismg under this Agreement and to exercise all 1righls and powers under this .Agreement ,or any l'aw now or heJeafte:r in force . .Additf onaHy , w1ilthout timHiing any of CUy's other rig:hts or remedies, upon any leasing of a particular Affo.rdable Unit in violation of this Agreement; then .Affordable H:ousing1 Owner shall! pay the City a singl·e fee of $10 (which shall' increase by $2 every five (5) years), per '.day un ii the vioration has been c~red ,(it being understood tha.t if the Affordable Unit :is uirnavailable due to material damage or destruction, Section 2.8.6 above shal I •g:ovem). Addi6'0nally, City shall be entitled to ~ecover firom Affordable Housing owner and Owner . in add ition to enforcement costs and any other damages to wh ·:ch City· may be en~iU.ed, a~I rent charged by Owner in ,excess. of the· rental amounts permitted under this Ag:reement , wi-th interest thereon from the da.te paid to, Affo:rdable Housing Owner until the date pa :id by Affordab e Housing Owner to City ,at the lesser of eight peroent (8%) per annum o,r the maximum rate --e.-m'"ed 1b--.-1-rw . Aff-o'"'.a· b"I -H1 "1 s · ng--Owner and Owne1r stipulate acknowl -d e -n. d-P r _,~L _ y a _ _ . _ ru _ e ou _ L _ _ . _ _ _ _ _ _ _ _ _ _ . _ e g _ a _ agree that the amounts described herein are reasonable e·stimates of the minimum damages incurred by the City and public as a result of viola,ion(s), and that .actua ;I damage would! be impractical o:r impossible to determine wijh accuracy . No remedy herein conferred upon m reserved to City 1s 11ntended to be exdusive of any other riemedy herein or by law provided or permitted , but each shaH be cumulative aind shall be in additlion to every o,tlher remedy giv,en he:reunder or now or hereafter ex.isling at law or i n equ:ity or by statute. Every power or remedy given by thi1s .Agreement fo the City may be exercised, concurrently ,or independently ,, from time to time and a:s often as may be deemed expedient lby the City , and the City may pursue inconsistent !remedies . The 166 City sh1all have the 1right to mandamus or ot h:er suit , action or proceeding at law or in eqt.fty to requ wre the Owner and ·the Affordab e Hou~ing Owner to perform :its ob.llg1ations and covena nts under this Agreement ,or to ,enjo]n acts or things which may be unlarwful or in v.iol1ation of the pr,ovis r.ons hereof. ARTICLE 7 ,GENERAL P·ROVl 1S'IONS 7.1 Notices.. .AIi not·oes, certiiicates 0 1r o t her commun ·cations required or pe · mftted hereiunde :r shaill be in writing and shall be delivered by certified ma.ii, postage prepaid, ,or by ,reputab e ovem:(ght m essenger service, addressed as follows : If to the Ci~. City of Moorpark 799 Moorpairk Avenue Moorp ark, CA '9•,3021 Attenti:on: City Manager I to the Owner o.r the Affordable Housing Owner.: ESSEX MOORPARK OWNER LP. Attention: ,John ID. Eudy 1100 Park Pface , Suite 200 San Mateo CA ·94403, With required copie-s to : ESSEX PORTFO 10 , LP. Attention: J1ordan Riitter 1100 Park Place, Suite 200 San Mateo . CA 94403 ,and ESSEX MOORPARK OWNER , LP . . Attention: Bob Under 17541 Derian Av,enue ,, Suite 11 o Irvine, CA 92614 .Either party may change its addr:ess tor notices by a w .fflen notice given in accordance wiith this Section . Not·ces shaI1I be deemed given on the date of actual delivery o r refusal to accept delive1ry as s h own on ~he retum receipt (if sent by certified maiil), or one (11), business d.ay after del 11very to the messenge r service (i sent by overnight messeng.er). 7.2 IRe~ationship of Parties. No'H1ing contained in this Agreement shal ll be interpreted or understood by any of the pa.rti:es , •Or by any third pe.rsons, as cr:eating the re .lationship of employer and ,emiPloyee, principal and agent1, rmited or ·ge·ne~a~ partnership·, or joint ventuire between the City and the Owner or the, Ci:ty and the 167 Affordable Housing Owner, or the City and any agents, employees or-contractors of the Owner or Affordable Housing Owner, and the Owner and the Affordab le Housing Owner shall each at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perfo rm the services required of it by the terms of this Agreement for the operation of the Project. The Owner and the Affordable Housing Owner have and hereby retain the right to exercise full control of employment. direction, compensation and discharge of all persons assisting in the performance of services hereunder. In regards to the on-site operation of the Project, the Owner and the Affordable Housing Owner shall be solely'responsible for all matters relating to payment of its employees , including compliance with Social Security, withho ld ing and all other laws and regulations governing such matters. The Owner and the Affordable Housing Owner each agrees to be solely responsible for its own acts and those of its agents and employees. 7.3 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person the Owner or the Affordable Housing Owner may have employed or with whom the Owner or the Affordable Housing Owner may have contracted re lative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the operation of the Project or the Property. 7 .4 [INTENTIONALLY OMITTED] 7.5 Limitation of Liability. 7.5.1 No member, officia l, employee, agent or attorney of the City shall be personally liable to the Owner, or any successor in interest, or the Affordable Housing Owner, or any successor in interest, in the event of any default or breach by the City or for any amount which may become from the City or successor or on any City obligation under the terms of this Agreement. No member, official, employee, attorney, partner or consultant of the Owner or the Affordab le Housing Owner shall be personally liable to City in the event of any default or breach by Owner or for any amount which may become due to City or its successor, or on any obligations under the terms of this Agreement or Development Agreement. 7.5.2 Notwithstanding any other provision or obligation to the contrary contained in this Agreement, (i) the liability of Owner and Affordable Housing Owner under this Agreement to any person or entity, including, but not limited to , City and its successors and assigns, is limited to their interests in the Project and the Property, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this Agreement or any other agreement securing the obligations of Owner or Affordable Housing Owner, under this Agreement, (ii) from and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement), shall be rendered aga inst Owner or Affordable Housing Owner, or their assets ( other than their interests in the Project, and this Agreement), in any action or proceeding arising out of this Agreement. 168 7.6, Force _Maj~ure. Whenever .a ~pa:rty requi 1red to ipe :liorm 'an act under this Agreement by a cert.ain time , said time sha ~I be· deemed extended so, as to ·take into, account •events of force maje:ur-e. As used herein '1or,oe majeure'' shall m.ean .a delay in perfo rim anoe hereunder due, to acts of God ,, fire , earthq!uak.e , ~load , extreme weatiher c-ond i~i ons , e·xplosions 1 war , invas i on , insurrection , riot , mob violence , sabotag:~. a.cts .of te rrorism , vandal .ism , ma licious, mischief, inabi lity to procure or general shortage of :labor, ,equiipment, facilities , mater,'als or supplies in the ~pen market, faHure of trans,portati,on, strikes . lockou ts, actions ,of fabor unions, ~hird party liti:,g1atio n., , r-equis,it1 on , governmental restrictio .ns, inc udiing , without limitation , inability or delay in obtaini 1:11 g government consents ,or permits, laws or orders of g:ovemmental, civil, mi 'itary or naval authorities , or any other cause, whether simUar or dissiim iilar to the foregoing , not w.ithin the party"s, co ntrol, other than ,ack ofr or inability to pr-ocure monies to fulf:ill its ,~ommiilments o:r ob lligations under this Agreeme:mr. ., 7. 7 I ndem n ificatiion of City. Except with r&spect to claims tillat a inise sol:ely from neglig'ence , fraud or wiillfu 1misconduct by the C:ity or i~ officers,1 emp oyees or agents, Owner and the Affo .rdable Hous mn,g, Own.er shall defend , 1indemnify and hold Ci :ty harmless from and against any and ;aU claims , losses , damages , •1i1abilities , costs and expenses ari sing ' directly or indirectl:y from,, or 1relating directly or indirectly to: ,(i) any fail'ure by Owne :r or Affordable Housing Owner to comp ly with the terms of this condemnation Agreement; (ii) the ,colllstrnclion, mainte11anc~,. altera ti on or ,operation of the Project; (Hi) any neg l1igence or willfu ;1 misconduct by Owner, Affordabe Housing Owne 1r o:r any of thei r e:rn p oyees, agents , co.ntr.acto,rs 1 licensees , invitees or tenants on the Project •Or the P r10perty 7.8 Rights and R-emed ·es Cumulative .. E~oept as otherwise ,expressl y stat-ed mn this Agreement, the· r ights and remedies of the parties ar,e cumulative, and Ile exe 1dse •or fai ure to, exe r,cise one or more of suoh rights o:r remedies . by either party shaH not preclud ,e the exercise by it at th e! same time or different time.s, of any right or remedy ·for the same, defaullt or any other default by the other party .. No, waiver of any default or br-e ach hemunder shall be iimplied f rom any ,omission to take .action on account ,of' such defau'lt if suoh default pers,ists o r i s repeated, and no, express waiver shat! affect any defaul t other than the default specified ·n the wa irver1 and such wavier shall be o.perative only foir th e time and ·to ~he extent therein stated. Waive rs of any ,covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach ,of the same oov,enant, term or condition. The consent or .approval lby the City ·ro or of any act by the ,owner ,or Affordable Housing Ow,ner requ iring1 ·furthe 1r consent or app roval shal:I not be deemed to waive or rende r un necessary the consent or approval to or of any subsequent. sim i la1r act The e~ercise of any r•ight , powe r or remedy shal'I iin no event ,constitute a •Cure or a waiver of any defau llt under this .Agreement, nor shall it inva'lid!ate any aot done pursuant to notice of default, or prejudice the City i n the exe:rcise of any right, power , or remedy hereunder. · 7.9 Enforcement: Wa 1iv,er. The City may take whateve:r action at !law 0 1r in equi ty as. may be neoessa:ry ,or deskabl'e to eniorce performance and observance of any obligation , ag:r10ement or covenant of t he Owner or Affordable Hous 1 ng Owner under thi s Agreement No delay or om ission to exercise any right or power ac~ruing upon any 169 default sha lll impair any such right or power or shaH be construf?CI to be a w.airv,er of such right or power, but any such right ,or power ma.y be exercised from time to time andl as often as City may deem expedient In order to ,entitle the Ciity to• ,exercise any remedy reserved to it in this .Agreement , it shall not be necessary ·to, give any notice, othe' than such ,notice as may be herein ,expressly requsred or required by law to be given. 7 .1 O Severab ility·. If any tenn provision, coven ant or condition o1· th is Agreement is held in .a final dispositlion by a oourt of competent jurisdiction to be mvali'd, void or unenforceable, the remaining p-r.ovisiions shaH continue ,in full force and effect unless the .rights and obl"gations of the parties have been materiaHy alter-ed or abridged by such 1invafidation voiding o~ unenforceabiliity. 7.11 Legal .Actions. In the ,event any legal action ·s. ,oommenoed to ·nterpret ,or to enforce "the terms of this Agireement or to collect damages as a iresult O'f any b:reach thereof, the p:a.rty prevail'ing1 in afly such action sha:11 be entitled to recover against the party not ,prevailing a.II reasonab 'le attorneys• fees and costs incu rrred in such .action (includi1ng:,. without limitation, aI :I reas.onab.le fe:gal fees incurred ·n .any .appea or in any ac~ion. to enforce any iresuEting judgment). 7 .12 B'inding Upon Successors; Assignment by City. This Agreement, and the exhibits attached hereto, shaH nm with the la~d and be b"nding upon and inure to the, benefit of the successors and assigns of each of the parties, and sucoesso :rs in interest to the P1roject or any portion thereof or interest therein . Any .reference in th s Agreement to Owner o:r Affordable Housing Owner sha.II1 be deemed to appmy to any successor or a.ssig:n or su:ccessor-in-interest of :such pa 1rty who has. acquired any pomion of or interest iin the Project. Without HmirUng Uie foregoing, City may assign this Agreement to the Area Housing Autho:rify of the County of Verntuira cir any ,other hous·n:g authority created by City or in which City is a member. 7.13 B,indrng Effect;, Succes~ors and Assigns . Owne1r and Affordabre Housing Owner each covenant and agree for itself., and . its. successors and ass.ig1ns and ev,ery successor in .interest to any portion of or interest in the Project that it and its s.uocessors, assigns and su:ocessors in interest :shaH comply w1iith all o·f the· terms, provisions easements condiitions, covenants, r,esMctio:ns, liens, and servitudes se;t forth in this Agreemer1t. 11his Agireemenl is intended to bjnd the Project and Property 11 irun with the 11and". 7.1!4 Transfers. Owner shaH provide ·the City with promip1 notice of any conveyanc-e· of .Affordab !le Units to the Affordable Housing Owner, with a oopy of the applicable deed. Owner shal ll pro~ide, the City with at least thirty (30) days' prio,r written notiice of any sale or transfier of the Project or the Property ,o,r any portion thereof. The Affordable Units shall at alll times remain ,owned by a siing,le entity .. Wdtten notice shall be ,g1iv.en to the City of any transfe:r, butt no consent of the C:ity sha ill be requiired for any transfer of Affordable Units to an entity of whi:ch the Essex Portfoli:o,, l.P. or any affiliate thereof, direcUy or indirectly, owns ,or controls the entity to wh ",ch the transFer w·u be· made, provided that the City is g:iven a oopy of the .Assignment and Assumption 170 Agreement and or-ganiiat-tona~ documents that prove the entily is such an affiliate of Essex eorffolio, L.P. 7.15 J,ime· of the 1Essen~. lln all matters. under this Agreement. time is of the essence. 7 16 Gomg ·lete UnderstandJog of the Parties. The Project Appro,va.ls and this Agreement constitute the enHre understanding and agreement of the p,a,rties. with respectto the matters desc~ibed her,e·n and therein . 7.17 Cons.t111uotton ,and Interpretation ,of Agreemen~. The parties he:reto acknowledge and agree that this. Agreement has been pirepa.ried jointly by ~he parties and has been ·the subject of arm's length and car,eful negotiation over a oonsiderabf.e period of time , that each party has rev1cewed this Ag 1r,eement W11th llegal counsel!, and ~hat each party has, the requisite· experience and s.ophis.tication to understand, iinte~p,ret and agree to the particular language of the ipro,v1isions of this A_greement. Accordingly,, in ,he ,event of an ambiguity in or dispute regarding the interpretation of this Agreement, notwithstanding Civiil Code Sec~ion 11654 , this Agreement shall not be interpreted or . ,construed! a:gain:st ttie· party prepiaring 1t., and instead other rules of i nterpretation and construction slh al ll be util.ized. 7.18, Controllling law: Venue. This Agreement sha :1 be deemed to be ent:ered into in CaHfornia and shall be controliled and interpreted by the internal laws of CaUfomia t witho,ut r-ega 1rd to oonfllict of law 1provis !i ons, •except to the extent federal faw applies . Venue: for any action brought under his .Ag:reement wiH be· in the Superior Court (or the County of Ventura . California. ,or in the Umted States 0-strict Court fur the Central rnsttiict ,of Cal'fomia . Own.er and Afoi;dable Housing Owner each hereby accepts for itself and in respect ·to iits propeirt.y, generalWy and unconditionally, the non-exclusive jurisdiction of the foreg ,oing ,courts . Owner and Affordable Housing Owner each ir,revocably consents lo the service of 1p:rocess in any acti on ,or pmceeding by the ~ailing of copies thereof by registered or certified mai ll, post.age pr~pa ~d, to Owner and Affordab e HoUS !in,g Owner at its, address fair notices pursuant to this Agreement. Nothing contained herein shall affect the nghit of the City to serve process ,in any· other manner permitted by llaw . 7 .191 Hazardous Materials. 7.19 .1, Defini'tions. The folllowing special definitions shall apply for the purposes oUh·s Section: (a) •!1 Hazar-dous MateriaJs" .shall mean : (1) any 11hazardous substance" as. defined in Section 101(14) of CERClA (42 U.S.C. Secti:on 9601 (14}} or Section 252.81 ~d) 0 1r 25316, of the California Heahh and Safety Code at such time; 171 (2) any 'hazardous water," "infectious waste ,or "hazardous mat erial" as de·fined in Section 2.511 71 .25 117 .5 ,or 2550 1 (j) of the California Health and Safety Code at such Ume ; (3) any other waste, substance or matEn·ial designated or regulated in any way as ''toxic" or uhazardous'' in the RCRA (42 U.S .C . Section 6,901 et seq.), CERCLA Federal Water Pollution Control Act (33 U.S .C . Section 1521 et seq.), Safe Drinking Water Aot (42 U .S.C . Section 3000 (f) et seq.), Clean Ai r Act (42 U.S.C. Secti:on 7401 et seq .), California Health and Safety Code (Section 25100 ,et seq . Section 3900 et seq .), or Californ ia Water Code {Sectio n 1300 et seq.) at such time; .and (4) Any addmonal wastes, substances or mat,e:ria l wrn ·dh at su:ch time are c' assified , considered or regu 'lated as hazardous or to.x ii c under any ot her present or future environme ntal or ot her similar 'laws re lating to the Project or t he Property. · ,(b) .. Hazardous Materials l aws11 means all feder.a l1 state . and local Jaws , ordinances, ,regu at ions i o rders and directives pertaining to Hazardous Mate ri als , 1in, on or under the Project. the Property of any porti on thereof. 7. 19.2 Certain Hazardous Materials Cove,niants aod Agreements. The Owne r and Affordab le· Housing Owner hereby agree that (a) Ne ~tller shall knowing ty permit t he Project, the P'roperty or any portion thereof to, be a site .fo r the use, generation, ueatment manufacture , storage, disposal or transportation of Hazardous Materials or otherwise ,knowingly permit the presence of Hazardous Materials in , on or under the Piroject or the Property. For the purposes of this Section only, the tenn "Haza :rdous Materials" sha'II not incilude: (1) construction matenia llls,, gardening materi als ., lh ouseho :d products, office supply products, or janitori al supply p,r,oducts customarily used i n i he· ,constru ction . owners h·pi ,operation , maii11tenance1 o.r management of residential developments o ir associated buildi ngs and grounds, or typically used in residential activities, in a manner typical of other residential deve fopments which are compa abte to the Project; or (2) certain substances whi ch may contain chemicals listed by the State of California pursuant to Hl ealth and Safety Code Section 25249.8 et seq ., which subst ances are commonly used by a significant portion of the population iving within the region of the Pmjeot, including (wi~hout limitation) alcoholic beverages , aspirin , tobacco products. and saccharine . (b) Eaich shall k,eep, and maintain its interest in Project and the Property and each portion thereof in complia n ce with , and shall not cause o r ipermit its i nterest in the Project, the Property or any po irtion thereof to be ·n vidlation of, any Hazardous Materials Laws .. (c) Upon rec-eiving actual knowledge of the same , the Owner or Affordable Housing Owner shall immediately advise the City in writing of: (1 ) any and all enforcement ,. clean 1 p , removal or other governmental or regulatory actions instituted , 172 completed or th:reatened aga ' nst the Owner •Or the Pmj:ect or the Pwperty pursuant to any appUcab!e Hazartlous, Mate :ria'ls Laws; (2) any and au claims made o:r threatened by any third party against the Owner ,or Affordable Housing Owner or the Project or the Property relating to-damage , contribution , cost recovery, -compensa~ion, loss or injury resu !lting1 from any Hazaroous Materia.ts {the matters, set forth in (he foregoing clause (1) and this clause (2) are hereinafter referred to as 0 Hazar,dous Materials Claims,1;); (3) the ,pfesence of .any Hazardous Materia fs inl on or under the Project o . the Property; or ,(4) the Owner1s or the Affordable Hous 'ing Owner's discovery of any ,occurr,enc.e or condition on any r-ea1 · property adjoining or :in the v ai:nity of the Project classffied as "bon::lerzone property'' under the provisitons of California Hearth and Safety Code, Section 25220 et seq., -or any regulation adop,ted in a.coordance therewith, or to be· otherwise subject to any 1restrict1ons on the ownership ,. ,occuip.ancy. transferability or use· of the Project or the Property under any !Hazardous. Materi1als laws. 7 .19.3 lndf§l.mr;il!Y·. Owner and Affordable , Hous .ing Owner hereby agree to indemnify, protect, holld harmless a d defend (by counse reasonably approved by the C ty), the City and its Cny Counci l members, officers., •emp l oyees, contractors, ag·ents and attorneys from and aga inst any and a.II claims, l osses, damages., Habilities , fines , penalties, charges, administ~ative a1nd jud ·cial proceedings and orders, judgments, 1rei:nedial a.ction requirements ,. enforcement actions of any kind 1 and .all 001sts and expenses incurred in connectron ther-ewith ,. including, but not llimited to,, reasonable attorneys·• lees and ,expe.nses(coUectiv,ely ·a "Loss"),, a1ris ·ing dir'E!,ctly ,or indirectly, in whole or-in part, out of (1) the failure of the Owner or the Affo:rdabl'e Housing ,Owner, as app ·icab 1le . or any other pe :rso~ or entity occupying ,or present on their respective interest in the Project or Property, to, comply with any Hazardous Materials Law rlilating in any way whatsoever to the handling, treatment, prese:rnce, 1removal, storage, deeontami,natlon , ,cleanup, transportation or d"sposa ,of Hazardous Materials ·into , on, under or ~rom the Project or the Prope•rty. (2) the presence in ,· on ,or under i'ts i nter;est ·n:' the !Project or ~he Pmperty of any Haz:airdous Materials or any releases or discharges of any Hazardous Mate:rials into,, ·On under or from its interest in the Project or the Property; or ,(3) any activity carried on or underta.ken on its interest in the Proj1ect or the Piruperty duri 1ng 'its ownership thereof, whether by the Owner or the Affordabl:e Housing Owner or any emp oyees, agents. contractors or subcontractors. or any ~hird persons at any ti.me occupying or present on the P·roject or the Property , in con ,nection with the· handling, treatment, 'removal , storage , decontaminat·on, c eanup, transport o:r disposal of any Hazardous Materials at any t·me located or present on or under the Proj:eot or the· Property . The foregoing : indemnity shall further apply to any residual contamination. on or under the· Pmjeot m the Property, or affecting ;any natu.ral resources, and to any contam ination of any property o,r natu:rat resources an·sing in connection with the generation use , handUng.1 treatment. storage, transport or-disposal of any such Hazardous Materials on, under. or fm:m the Project or Ille Property, and frr,espective of whether any of such act:ivities were or will be undertaken in acco dance wittl1 Hazardous Matedals, Laws. However, the· foregoing indemnity shall not ,extend to the portion of .any lloss anes·ng ·from the gross negligence, fraud or w,il ilful misconduct of ·the· City or anyone for whose .actions. the City is legal y liable . lhis Section shall! surv~ve te rmination of this Agreement. 173 ·7.19.4 No Limitation . Owner and Affordable Housiing1 Owner hereby acknowled :ge and agree that their duties, obJig:atfons and liabi i,ties under this Ag1r-eement .are in no way lim:ted or otherwise affected by · a:ny information the· City may have concerning the Project or the Pr:operty and/or the presence within the Project: or the Property o·f any Hazardous M~tefal'.s, whether ·the C."ty 1obta iined such information from Owner or Affo ,rdable Hous·ng1 Owner or from its own investigations. 7 .. 20 Insurance Reguim,mems. 7 .20.1 Requiired Coverage. Owner and Affo~dabl 'e Housing Owner shal ma~nta in and keep in force at their so e cost and expense·, the· following1 insurance 'for ttle11r ,respective interests in the Project. provided however , that a Contractors liab~lity poUcy may be used during ,cons truction provided it compHes with al terms and conditions of this Section. (a) Comprehensive g.eneral liability insurance with lim:its not less than two mill:ion dol llars ($2,000,000) for each occurrence . oombined s1ing le limit for bocrly injiwry and property damage, i:nc.lud ing cove:rages for contractual !liabi i ity, persona '! injury., lbroad form property damage,. products and comp,leted operations .. Beg1inn:ing on the fifth anniversary date of the reco dauon of th is Agreement, and ·thereafter -every five (5) years, the po'licy limi:ls shall be ,increased by ten: per-cent (10%), of the then=current l'imit. (b) Comp rehensive automob iile Habil'ity insurance wm, limits, not less th.an $2 ,000 i000 for ea.ch oocumrence, combined singl'e limilt: for bodi ly injury and pr,operty damage, including cover-ages for owned, non --ownedl and hired vehicles . Beginning oni the fifth an :l'ldversary date of the r;ecoroat·on of this. Agreement, and thereafter every fve (5) years, the· policy limits shaU be increased by ten percent (10%)-· of ·the then-cu r,rent lmmlt. ,(c) Werner's compensation ;insu:rance-, fidelity bonds and/or such other ·nsurance co ,verage which is, ord narily and customari :y ma intained on liike kind and sized apartment projects within the City. (d) A po icy or poliicies of insurance aga :inst l'Oss. ,or damage to the Project resulting from fire, windsto 11m, hail, 1,ightning:1 vandal:ism , malioious mischief, and such ,other penis ordinanily in.crn uded in ,extended · cover.age casualty insurance policies. In addition, iif Owner or Affordable Hous,ing Ow,ner ,carriea oovetage vol untari'ly for additiona : causes (such as ,earthqua '~e . riot civill commotion or other),, such cov,erage shaH be treated in a:11 r:espects . .as the policy or pofaes r,equired to be k8ipt under tihis. par.agraph ( d) for so llong1 as it continues to votunta rril¥ carry such ,coverage .. AJII insurance hereunder1• except earrthquake insuranc-e, shal~ be ma i1nta·ned in an amount not iless than one hundred percent (100%) of the Full lnsu irab e Value of the Project as defined below (such 'V.a llue to indlude amounts spent: for construction of ~he Project, architectural and engineering fees 1 and inspection and supervision). "Full insurable Value of Ole Pr~ject" shall mean ·the actual re,placement oost excluding the cost of excavation . foundation and footings bel:ow the ,ground level of the Project . ro ascertain . - 174 the amount of coverage required , Owner and Affordable Housing Owner shall cause the Full lnsurc1ble Value to be determined from time to time, but in no event less often than once each five (5) years , by appraisal by the insurer or by any appraiser mutually acceptable to. City , Owner and Affordable Housing Owner; exeflpt that no such appraisals shall be required if the policy is written on a "replacement cost" basis. 7.20.2 General Requirements. The insurance required by this Section shall be provided under an occurrence form , and Owner and Affordable Housing Owner shall maintain such coverage continuously so long as this Agreement is in force. Should any of the required insurance be prov ided 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 po licies shall be with an insurance carrier licensed and admitted to do business in California and rated in Best's Insurance Guide, or any successor thereto (or if there be none, an organization having a national reputation) as having a "Best's Rating " of "A " and a "Financial Size Category" of at least "VII " or if such ratings are not then in effect, the equivalent thereof. 7.20.3Additional 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 en.dorsed to name as additional insureds· the City, and its City Council members, officers , agents and employees. All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage , or intent not to renew to the address established for notices to the City pursuant to Section 7 .1 of this Agreement. 7 .20.4 Certificates of Insurance. Upon the City's request at any time during the Term of this Agreement, Owner and Affordable Housing Owner shall provide certificates of insurance, in form and with insurers reasonably acceptable to the City, evidencing comp li ance with the requirements of this Section, and shall provide complete copies of such insurance policies, including ·a separate endorsement approved by the City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an additional insured. 7.21 Burden and Benefit. City and Owner and Affordable Housing Owner hereby declare their understanding and intent of the burden of the covenants set forth herein touching and concerning the Project and the Property. 7.22 Amendments . Changes and modifications to this Agreement shall be made only upon the written mutual consent of the Parties. However, no changes shall be made to this Agreement which would adversely affect any bonds issued under this Project without the written consent of all appropriate parties with respect to any bond issuance. 175 7 .23 No Th ird Party Beneficiaries. This Agreement shall not benefit or be enforceable by any person, or firm , or corporation , p ublic or private, except the City, Owne r, Affordable Housing Owner and their respective successors and ass igns. 7 .24 Counterparts. This Agreement may be executed in counterparts, which togethe~ will be one agreement. 7.25 Assessme nt Districts: Covena nt and Waivers. Owner and Affordab le Housing Owner agree to cast affirmative ballots for the increase of any assessment for existing assessment districts for t he 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 orde r to supplement then-existing assessments upo n properties within the Project. Owner and Affordab le Ho using Owner hereby waive any right they or either of them may have to contest or protest such assessments or any assessment increases. In the event that any such assess ment _district has · insufficient funds for its purposes, then Owne r and · Affordable Housing Owne r shall pay the fu nds that the assessment district requ ires td the assessment district within five (5) business days after written demand from the assessment district from time to time . AR TI CLE 8 IN CORPORATION OF CERTAI N DEVELOPMENT AGREEME NT PROV ISIONS T he term of the Deve lopment Agreement is for seven (7) years, while the term of this Agreement is much longer (as described in t he 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 "D~veloper" thereunder) and continue until the expiration (or earlier terminat ion) of this Agreement, it being understood that all of the rights and benefits of Owner and Affordable Housing Owner under the following (except for obligations there unde r arising prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early termination of the Development Agreement due to a default by Owner or Affordable Housing Owner thereunder. 8.1 No Other Separate Conveyance of Affordab le Units. After the initia l conveyance by Owner to Affo rdable Housing Owner of Affordable Units, Owner and the Affordable Housing Owner and their successors in interest shall not convey their respective portions of the Property separately, but shall only co nvey them concurrently and to the same purchaser, only to a purchaser reasonably approved in writing by City (wh ich wil l consider the· reputation and experience of the purchaser in owning and operating affordab le rental units). 'As a condition to the initia l conveyance by Owner to Affordable Housing Owner of Affordab le Units, Owner and Affordable Housing Owner shall execute, acknowledge and reco rd {i) a separate agreement (i.e., a covenant and agreement to hold property as one parce l) imposing the foregoing restriction on the Property, which shall be subject to the written approval of City , and (ii) "conditions , 176 • cov,enants and restrictions" for the Pmject ("CC&R 1s,i ), which shall also be subject to the written approval of City. Such :sepa -ate agre.ement and CC&R.'s shall be senior to any and all deeds of trust and otller !liens ,(excep · property taxes and asses ·sment·s not yet due). 8.2 Development of the Property. The· following1 p ovis ions shall govem the subd "vision, dev-elopment and use of the Property. 8.2.1 Permitted Uses. The permitted and condi~ro11ally permitted uses of the Property shal be limited to ·those that are allowed by the Project .Approvals and the Deve.lopment Agreement. 8 .. 2.2 Developme~ Standards. ~II design and development standards,. inc uding but not i imited to density or :intens ity of use and maximum height and :size o,f buildings, that shall be a1ppl:icable to the Property are set forth in the Project Approvals and the Development ~greement. 8.2.3 !Building Standards. AH construction on the Pmperty shall adhere to all' City building codes ·n effect at the time the pllan check -or ,permit is approved per Title 15 of the Moorpark Mun i cipal Code and to any federal or state building requirements that are the ·n in effect (collectiv•ely 11the :Building1 Codes 1'). · 8 .. 2 .4 Rese:rvatio:ns and Dedications. A!U reservations and dedications of land for public purposes that are appUcable . to the Property are .set forth in the Project Approvahs and the Development Agreement. 8.3 Den_slties Allowed for Devel'opment. Owner and Affordable Housing Owner agIree that densities vested and incentiv,es and concessions received in the Project Approvals include all densities available as. density bonuses .and all ince:ntives and concessions to Which Developer is entitled under the Moorpar,k Municipal Code 1 Government Code Sections 65:915 through 659·17.5 o: both; neither Owne r no,r Afforoable Housing Owner shaH be entitled to further density bonuses or incentives or concessions and iurther agrees that its execution of and compliance with th's Agreement is in consideration for the density bonus obtained through the Project Approvals that is g:reater than would otherwise be av.ailabte·. Residential Planned IDeveropment Permit No. 2012 -02 1 including the special conditions that i ncorporat,e and include all of the requirements set forth in this Agreement are part of the Project conditions of approval and not merely contractual in nature . 8 .. 4 Assessment Di.stricts. Prior to issuance of a Zoning Clearance for the first building permi:t or the approval of any final map for the Pr•oject : (a) Owner a . d Affordable Housing Owner shall pay the Cfty a single Five .Thousand Dollar ($5,000) Assessment District Formation Fee· and (b) elher two Assessment Districts (one fully funded and a second "back-up' district} or one Assessment Distric 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 Oity's discretion1 shall be formed that includes the Property . The, first Disbfot out of the two Dlstricts or the first zone of the one • District , whichever is 177 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 th e maintenance of the storm water quality basin and drainage improvements, includ ing 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 wate"r basin access drive and the emergency access drive . It shall be i he intent of the City to approve the requi red assessment each year, but to only levy that portion of the assessment necessary to recover any past City costs or any anticipated City costs for the that fiscal year. The City shall administer the annual renewal of the Assessment District or Districts, and any costs re lated to such administration shall be charged to the fund ·established for such Assessment District revenues and expenses. Owner and Affordable Housing Owner agree to cast affirmative ballots for the establishment of both Assessment Districts, or both zones of the one District, as applicable, and for annual increases in the assessments thereunder, for the purpose·s specified in this subsection. Owner and Affordable Housing Owner hereby waive any right they may have to contest or protest any such assessments or assessment increases. In the event that any such Assessment District has insufficient funds for its purposes, then Owner or Affordable Housing Owner shall pay the funds required to the Assessment District within five (5) business days after written demand from the Assessment District from time to time. Owner and Affordable Housing Owner also agree to add this language to any Regulatory Agreement as part of the sale of any bonds issued by the City for the Project. · 8.5 Fee Protest Waiver. Owner and Affordable Housing Owner agree that any fees and payments pu rsuant to the Deve lopment Agreement, this Agreement and for RPO 2012-02 shall be made without reservation , and Developer express ly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary theretc;,. 8 .6 Required Tenant · and Guest Parking . Owner and Affordable Housing Owner agree to provide a total of at least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and reserved for each of the 2-bedroom and 3- bedroom units, and one space shall be designated and reserved for each of the 1- bedroom units, with the remainder of the spaces available for guest parking. At least one of the parki ng 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 a re Affordab le Units). Owner and Affordable Housing Owner shall only be requ ired to provide ninety-four (94) guest parking spaces. 8.7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge the City's ability to modify the development standards and to change the General P lan 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, Genera l Plan designation and zoning to those 178 development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 8.8 Indemnity. Owner and Affordable Housing Owner will defend, indemnify and hold City harmless from and against any and all claims, liabilities, losses, damages, costs and expenses ·arising from any activity by Owner or Affordable Housing Owner or the contractors of either of them. 8.9 Storm Water/Flood Detention Basi n. City agrees that Owner and Affordable Housing Owner may use the storm water/flood detention basin located on the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Owner and Affordable Housing Owner to that effect; however, City may e lect by written notice to Owner and Affordable Housing Owner t o rel<>cate said detention basin and any service road and secondary access road located on the City Property at any time, and Owner and Affordable Housing Owner shall reimburse or pay City for the costs of such relocation within ten (10) business days after written demand from City from time to time describing such costs. Owner and Affordable Housing Owner shall promptly provide a bond acceptable to City i n the amount of such costs, as proj ected in good faith by City, to en;,ure payment of the costs, and every two (2) years the amount of the bond shall be increased (by amendment or by a replacement bond) by the percentage increase over the applicable two year period in the Caltrans Highway Bid Price Index for Selected California Construction Items, as determined in good faith by the City Manager. WHEREFORE, the parties have executed this Ag reement as of the date first- above written. CITY: CITY OF MOORPARK By:--------------Print Name: _________ _ Title: ___________ _ 179 OWNER: ESSEX MOORPARK OWNER, L.P., a California limited partnership By: Essex Moorpark GP, L.P., a Ca lifornia limited partnership, its general partner By: Essex Management Corporation, a California corporation , its general partner By: ________ _ Print Name: _____ _ Title: _______ _ 180 A notary public or othe r officer oo:mp leti ng th is certificate ve rifies on ly the identity of the 1ind ivi dual who signed the docume nt to whic h this certi fica te is . attached and not the tru thful ness , acc uracy., or val idity of th.at dooumen t State of Ca lifornia County of Ventura ) ) On ___________ , before me,~---~~.,,...,...-=-,..--- Onsert name and lide of lhe office1} Not ary Pubilic, personal 'ty appeared __________________ __, who -proved to me· on the basis of sati sfactory evidence to be the person(s) whose name(s) is/am subscribed to the within ·nstrument and acknowfedged to me that he/she/they executed the same in h~s/her/the fr autho,ri zed ca,pacity(ies), and th at by his/her/their signatur,e(s) on the instrument the person(s}, or the entity upon behalf of which the pe.rson(s) acted , executed the instrume nt. I ce rtify under PENAL TY OF PE ,RJURY under the laws of the State of California. that the foregoi ng para:grap h rs t rue and correct. - W ITN ESS my hand and official. seal . Signatur:e. _____ ~--------(Seal) 181 A notary public o other officer com ,pleting this certificate verifies. only the ·dentity of the indivfdual who signed the document to which this oertmcate is attached, and not the, truthfulness , accuracy, or valfdity of that dooo ment. State of California County of V:enturr.a ) ) On -----------,· belore me .---=----~~~~----' (1"681't riame and tide , of the officer) Notary Public, pe:r:sona ly appeared --~----------------' who proved to me on the bas.is 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/ithey executed the same in his/her/their authorized oapacity(ies)1, and that by his/her/dleir signatu:re(s) on tile instrument Ule person(s), o:r the .entity upon behalf of which the person(s) ,acted, executed the instrument I ,certify under PENAL TY OF PE]~.JURY under the laws of the state of California that the forego ·n:g' paragraph is true and correct WJTNESS my hand and o'fficial sea ll.. Signa.ture,_-____________ _ (Seal) 182 EX HI BIT NO. 1 TO AFFORDABLE HOUSING AGREEMENT LEGAL DESCRIPTION THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS: ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document No. 20050721-0178764 or official records ,i n 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 W ITH that portion of Parcel IA of in that certain Lot Line Adjustment No. 200503 in the City of Moorpark, County of Ventura , State of California, r~corded May 3, 2005 as Document No. 20050503-0108315 or officia l records in the Office of the County Recorder of said County, being a portion of Lot 'T', Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder, lying northerly of the following described line; BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly comer thereof; · 1st Thence, departing said east line South 89°38'32'West 752.05 feet; 2nd Thence, South 27°20'34West 36.75 feet; 3rd Thence, South 89°03'54'West 293.78 feet to a point in the west line of said Parcel 1A. 183 EXHIBIT ,NO. 2 TO AFFORD ,ABLE HO'USIN:G AGRE 'EMENT TYP :E OF UNIT, NUMB,ER OF UN ITS,, HOUSEHOLD SIIZE ADJUSTMENT AND UTILITY A!L L OWANCE ; OCA"f ON'S OIF AF F ORIDABLE UINITS Ve:iy Low ~noome Type of Unit 1.:br . 2--b r/2 bath 3-b r Total low Income Jy12e of Unit 1 .. br 2.-br/2 bath 3,..br Tota ~ Moderate: Incom e Tmeof Unit 1 .. br 2..;blrl.2 lb.a.th 3:.J br Total Number of Units 8 7 1 16 Number of Uniits 11 12 1 24 Househord Size Adj1ustment 2 persons 3 persons 4 pers,ons Household Size Adjystment 2 persons 3 persons 4 persons Utilli~y Allowance $156 $,1175 $1:99 Util'ity AUowaoce $,156 $175 $,199 (but must mstead be l ow Income when tax credit and/or tax exempt bond laws app lry to the 1~roject) Number of Units Household S~e 0 5 § 10 Ad'jus~~nt 2 persons 3 persons 4 pe.rsons Uti l~tv Al1lowanoe $156 $175 $199 The above Adjustment for !Household Size is intended to, p rovide a single rental rate appllicab!e to eligible ten ants for each type of unit, and, therefore , is applied regarcHess. •of actual household size The Affordable Hous iing Owner may not charge additional re:nt based on a l'a.rger actual hou seho'ld size .. Illus tration : For example , the maximum rent fo r a Very llow Income, Household renting a 2 -bedmo:m unit woutd be ,ca cul!atedl as follows : 30% x 50% x the Ventura County median income for a household of three divided by 121, less the uti1ity .a lowance. 184 Illustration: For example, the maximum rent ior a Low Income Household renting a 2-bedroom un ~t would be ca culated as follows.: 30% x 160% x the Ventura County median 'income for a househo1 d ofthr;ee di11ided by 12, less the utiillty allowance. IHustr.ation : For examp,le·1 the· maximum rent for a ModeJate Income iHousehold renting a 2-bedroom un it would be calculated as follows: 30% x 1·10·% x the Ventura County median income for a household of three divided by 12,, less the utility allowa ce. Utility Allowances will be adjusted annually using the most current "Allowances for ~enant Fumished Utillities and Other Services" (form HUD-52667) based on ApartmentJWalk Up unit ~pe as posted and updated anni.JaUy by the Area Housing Authority of the County of Ventura based -on the following appliances/utilities to be provided to the u 11 its: · Natural Gas-Heating, cooking:, water heating Water, Sewer, ~rash, Other Electric al,lowance (for lights. and other electric uses) Locations of Affordable Un "ts (ilncluding HandicaQR.ed-Compliant Units) The Affordable Units (1inc lud ·ng handica;pped-compliant units) shaH be .located as shown on the site plan attached hereto. 185 ..... ---..,_ \ i r I L.~ i!• Ii '1"1~ ,l-1-~ 1--l '■ .. 1 .• . 11~ l,ii ~, ""'= ,... i.._ .. = .. ;f. 11 • r-I ' I 11" . '~'i I , :1 I , 11 I I I' I , f ~ I -1- l .... ll.,f!lt a: ~ .... ' -:c I- 186 = 187 ,. 188 11. EXHIBIT ,NO. .. 3 TO AFFORDABLE HOUSJiNG AGREEMENT FORM OF CERTIFICATIONS OF TEINANl IELIG:IBILITY New Certificati:on / Recertification Unit Number -------------- INCOME COMPUTATION! AND CERTIFICATION NOTE TO APARTMENT OWNER: This form is designed to assist you in oomputing Annual Income R,e,: (NAME and AD·DRESS of Apartment BiuUding) To: --------------------------- UVVe the undersigned state that I/we have read and answered fully , frankly and personaUy each of the following questions for alll persons who afe to occupy he unit being applied for i n the above apartment project. Listed below are the names of .all persons who intend to reside in the unit: 2. 3. 4. 5. Name •Of Members Relationship Of the to ·ead of Social Securirty Place of Household Household 89:e Number Employment Income Computation 6 . The total anticipated income, calculated ·n accordance with this paragraph 6, of alli perso.ns (except children under 18 years) r:sted above for the 12-month period beginniing the ea ier of he date, that I/we p,lan to move into a unit or sign a .lease for a unit is $ --------- It lhls form Is be ng completed In acooroance•wilh reoertificatlon of a Lower Income" Tena:nl's or Very Low rncome Tenant's oeaJpancy of a Lowe lilCOme On or a Very low Income Unit, respectively , thiS fo1m must be oompleled based upo n lhe cu«,an t ncome of the OC(lllpanls. 189 :Included n the tota :I anticipated iricome listed above are. (a) the fuilil amount before any payroll deductions, o,f wages and salaries, overtime pay, commissions , fees tips and bonuses and other compensation for personal ser.ic-es ; (b) the net income fr,om the operation of a business or profession . Expenditures for business e·xpansion or amorUzation of capital' indebtedness shall not be used as deductions in determining net income. An allowances for depreciation of assets used in a business or profe&sion may be deducted , based ,on strai,ght line depreciation, as provided' in nte nal Revenue Service fiegulations. Any withdrawal o.f cash or assets from the operation of a business or profession will be inc uded in i ncome , except to the extent the withdrawal 1is reimbursement of cash or assets invested i n the operaUon by the family; ,(c) interest and dividends, and ,other net i come of any kind ftom real or personal property. Expenditures for amortization of capital: indebtedness shall. not be used as deducti ons in determining net income. An a'llowance for depreciation is pe.rmttted only as authori~ed in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an investment will be included in ~noome1 except to the extent the withdrawa' is reirnburseme .nt of cash or assets, invested by the fami ~Y-Where· the famHy has net fam ~ly .assets in exoess of $5 ,000, annua·I wnoome shall incJude the greater of the actual· income derived from all net famdy assets or a pementage of the value· of sudh assets based on the current passbook savings rate. (d) the full amo,un of periodic payments received tum Socia il Security, annuities, jnsurance policies, retirement fonds, pensions, disability or death benefits, and other similar types of periodic receipts , [ncluding any lump sum an:iount except deferred period ·c amounts from supplemental security income and socia security benefits that are received "n a lump sum amount or in prospecti:ve monthly amounts; (e) payments i n lieu of earnings, such as unempbyment and disabilfty compensation , workers compensation and sev-erance pay ;: (f) welfare assistance. If the welfare assistance payment includes an amount specifically desi gnated for she!lter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelter and utiilles, the amount of welfare assistance i ncome to be· included as ·ncome shall consist of: (11) the .amount of the aUowance or grant exclusive of the amount specifica1:1y de·s.igrnated for shelter or utilitie·s; plus (2) the maximum amount that the welfare assistance ag:ency could in fa.ct allow the, fami !ly for shelter and utUities . I:f the familfs welfare assistance is ratably reduced form the standard of need by applying! a percentage, the amount calculated under thi s paragraph shall be the amount resulting from one application of the percentage ; 190 (g) peri:odic and determinab!!e allowances, such as alimony and chi:ld support payments, and regLdar contributions or gifts ,received firom or:ganizatlons or firom persons not res ,iding in tihe dwell'ing ; (h) au :regular 1pay, special pay and allllowances of a member O'f the Armed Forces except the· specia pay 'to a family member serving in the Armed Forces ,except the spec ·a1 pay to a fami lly member serving in the Armed Forces who is exposed to hostile fiir,e; and Excluded ftom . such anticipated fncom.e are :: (a) i'ncome, fimm emplbyment of chil 'dren (including foster chifdre.n) under the age of 18 years; (b) payments ,received for the care of foster ohildr,en or foster adults (usuaHy persons with disabilities, unre·lated to the tenant fami 'ly,, who are unab lle to, live a ,one);: · (c) l ump sum additions lo family assets, such as i nheritances, insurance payments (inctuding payments under heal:th and acddeirrt insura1nce and workers• compensation),, capita ! gains and settlement for personal ,or property losses ex·cep payments m lieu o,f eam ing:s., such as unempl!o,yment and cfsability compensation l work.er's compensaHon and severance pay; ( d) amounts received by the fami ,ly that are specificalll:Y for , or in reimbursement of, the cost of mecr cal ,e>qpenses for any fami l~Y. member; (e) income of a live-in aide , as defined lby 2.4 CFR §5.403; (f) the fu II amount of student financial assistance pa.id di rectly to the student or to. the educati'onal institution; (g) the special ;pay to a. family member se·rving in the Armed Forces who is exposed to • hostile fir:e ; (h) ,(1) amounts received under train ing programs funded by the Department of Housrng and Ut ban Development , ,(2) amounts rece ived by a. person with a disability that are d"sregarded for a li mited time, for purposes of Supp!emental Securilty lnoome elig i bility and benefits because the,y are set aside for use unde :r a Plan to Attain Self-Sufficiency (PASS); (3) amounts received by a parti-cipant in other publicly assilsted programs which are specifica l ly for ,or in ·reimbursement of out-of-pocket expenses incurred (specia equipment , clotMng , transp,ortation, child ,care , etc.) and which are made sole ly to allow p,art·cipation in a speci~io program ; (4) amounts received under ,a. resident service stipend is a modest amount (not to exceed $200 per month) received by a r-esident foir performing a service for the 191 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 1p-atrol, hall monitoring, lawn maintenance, and resident initiatives coordination. No resident may receive more than one such stipend during the same per,iod .of time; (5) incremental earnings and benefits resulting to any family member from participation in qualify.ing State or tocal employmen , training programs (including training programs not affiil"ated with a ocal government) and training ,of a family member as resident management stat[ Amounts excluded by this provision must be received under employment training programs w,ith clear1y defined goals and objectives, and ar,e excuded only for the ,pe.riod during which ~he familry member participates in the ,ern,p,loyment 1tra i ning program.· (i) temporary, nonrecurring or sporadic nco.me (including gifts); 0) reparation payments paid by a foreig:n government pursuant to claims fifed under the laws of that government by persons Who were persecuted during the Nazi era; (k) eam·ngs in excess of $480 for each fuH-te rm student 18 years old or ol:der (excluding the head of househo :ld and ·spouse)· ,(I) adoption .assistance ;payrnents in ,excess of $460 per adopted chi d ; and ~m) deferred periodic payments of supplemental seet.1 ify income and soci al security benefits that are received ·n a lump sum amount or in prospeo,tive monthly amounts; · (n) amounts received by the family in the form of refunds ,or rebates under State or loca law for property taxes paid on the dwelling unit; i(o) .amoun s 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 deve,lo,pmentally disab ed family member at home ; oir ' (p} amounts specifica ly excluded by any other Federal statute from consideration as income for purposes of de'termining eliglbUity or benefits under a categ:ory of assistance programs that includes assistance under any program to which the exclusions set forth in 24 CFR §5.609(c) app[y. 7. Do the persons whose income or contributions are included in item 6 above:. (a) have savings, stocks , bonds, equity in real property o:r other form of capital investment (e,xc'l uding the values ,of necessary items of personal. property such as furniture and automobiles and intere·sts in lnd'an trust land) ~ ___ Yes _____ No; or (b) have they disposed of any assets (other than at a forec osure or bankruptcy sale) during the last two years at less than fair market value? 192 Yes No --------- (c) 1:f the answer to {a) ,or (b) above is y•es, does the combined total value of all such assets owned or disposed of' by alll such persons tota l more· · han $5,000? ----Y,es _____ N'o · (d) If the answer to (c), above is yes, state. (1) the combined tota ~ value of all such assets: $ --------- ( 2) the amount of income expected to be deliived from such assets mn the 12 - month period beginning on the date of initial occupancy in the unit that you propose· to r-ent $ _______ , and (3), the amount of such income, if any., that was included in item 6 above : $ ______ _ 8. Are alll of the individua 1ls who pr,opose to r,es:ide in the· unit fu l I-time :students'"'? ____ Yes _____ No .,A fu111-time • student is an i ndividual enroll1ed as a fi.1 111-time· student during each of 5 calendar months during the calendar year in which occupancy of the unit begins .a.t a.n educational organization wh ~ch no.rmal lly ma mntains a. regular faculty and our{ cu llum and norimaHy has a regularly enmlled body of students in attend:anoe ,or is an individual! pursuing a fiull ~time course of instituUonal or farm tr:a ning under the supervis.ion of an accredited agent of :sudh an educational1 organ·~a.tion or ,of a state o,r poliltical subdivision thereof. (a} If the answer to 8(.a) is yes, ·s. at. !least 2 of the proposed -occupants ~f the unit a husband and wife entitled to fi:le a jo!int fede·raf income tax return? Yes No -------- '9.. Neither myself nor any ·oth.er occupant of the• unit I:/we propose to rent is the owne :r of the· rental hous ing project in which the unit is located (hereinafter the· 110wner'')., has any family relationship to the Owner; or owns directly or indir,ectly· any interest in the Owiner. For purposes of this. 1paragraph . indirect ownersh ip by an :·ndividuaf shall mean ownership by a 'famil'y member, ownership by a, corporation, partnership, •estate or trust m proponi.on to the· ,ownersh·p ,or beneficial interest in ·such oorporation, pa 1rtnership, estate or Trustee he·fd by the ind1r-1idua l or a fam "ly member; and ,ownership , direct or indirect, by a partner of the individuat 10. This oertlificate· is made with the know!edge that it wm be · relied upon by ~he Owner to determine maximum income for eUg iibility to occupy the· unit ; and f/we declare· that all i nformation set forth herein is true. correct and complete .and ba.sed upon information I/we deem reliable and ·that the statement of total anticipated income ,contained in paragtaph 6 iis reasonable and based upon such 1investig1ation as the undersigned deemed necessary . 193 11 . I/We will assist the Affordable Housing Owner in obtaining any information or documents required to ve ,rify · he statements made herein ; including, either an income verification from my/our present employer(s} or copies of federal tax r,e,turns for the immediately preceding callendar year .. 12. l'Nl/e acknowledge that I/we have been advised that the maki ng of any m isrepr;esentation or misstatement in this dedaration wi~I constrtute a material breach of my/our agreement with the Affordable !Housing Owner to lease the unit and wi:11 entitle the Owner to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other approp ,ria.te proceediings. I:twe deola re under penalty of perjury that the, foregoing is true and correct. Executed t hl's ___ day of _________ , .20 ____ (year) in the City of Moorpark , Cal:ifomia Appli cant .Applicant Applicant Applicant [Signature of .all persons (except children under the age of 18 years) Hsted in number 2 above requ i red] 194 FOR COMPLETION BY OWNER/AFFORDABLE HOUSING OWNER O·NLY: 11. Caloufation of eligible income: a. Enter amount entered for entir:e househol1d in 6 abov,e: $ ---~- b . {1) -f the amount ent:ered in 7(-c)albove is yes , enter the tota l amount entered in 7 ( d)(2), subtract from that figure, the amount ente.red in 7 ( d)1(3) and ente the remaining1 balance ($ _____ ); (2) Multip:ly the amount entered rin 7(d)(1) times the current p,assbook savffi11gs rate .as determined by HUID to determine, what ~he total annua ll eaming,s on the amount ·n 7,(d){1) wou!dl lbe if i'nvested iI n passboo 'k savings ($ ______ _,; sybtract ·from that figure the amount entered in 7(d}(3) and ente r the remaining balance ($, Ente:r at right ihe greater of the, amount cal 1culated under (1) ,o,r (2) c. TOTAL.EUG 1I.BlE INCOM E (lline 1.a p·lus line 1.b(3)): $-· ______ _ 2.. The amount entefed in ·1.c: QuaHmes the a,ppltcant(s) as, a Moderate -llncome Tenant(s). _______ Qualifies the applicant(s) as a Lower-Income Tenant,(s). _______ Qualifies ftle appli:cant(s) as a: Very-Low Income Tena~,(s). 3. Number of ap~rtment unit assigned : ____ Bedroom size : ____ _ Rent:$. _____ _ 4 . This. apartment unrn (was/was no't) last ,oooupied for a period of 31 or more consecutive days by persons whose agg regate anticipated annua1I :income as cerlil'ed in the above manner upon their initial occupancy of the apartment unit qua ified them as a Lower-Income "f:ena:nt(s )r . 5. Metlhod used to verify applicant(s) noome : ________ Employer income ve r ification. Copies of tax re ~ums. ______ Other( _______________ ) 6. Is ocoupant a City of Moorpark res1id'ent on the waiting list who was girven priority? Yes: ___ No: __ _ Manager Date 195 I INCOME CA!LCULAT.ON WORKSHEET i lriclud!e al household income for all persons over 18 y,ears, of age. Written verification ,of ail income must be ino1uded. •Gross Net 1,099 Public Social Pension Unemploy Military A limony Family Applicant Wages Income nee.me, Ass istan ce Security ment Pay and/o r Supp . 1 2 3 4 & Salaries* from 1040 disabi lty or Dhild (regular gift. ,(Yl''D as of: (self . worker-s Support from ) emplcj"ed) compensat person not ion pay living in uniO I I I ~A)TOTAL.INC0ME IS -Includes overtime pay , commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs ,or ins u ranee payments- AS ·S,ET CAJl.,:CULATI0N A ll income earned on assets in el'!cess of $5·,000 must be, inc lu ded as household in come. Written verification must be fnctuded. If WJiltt,en verification is not availab le for saving,s, the cuil'fent passbook savings rate as, determined by HU D may be used . Real Property'" $ Savings $ Stocks $ Bonds $ Other" $ I (B) T,OTAL ASSET INCOME I $ *!Includes r,ental incom e or ,equ ity if not rented only. Equlfy ·s tt,e diffe enoe betw~n the market value of the property and 1he total d'o ll ar amount of any loans secur,ed by the property . .... Does not include the personal prope,rfy i.,e., tumiture or automobiles, ! TOTAL H:0USEH 10LD INCOME (A+ B) 196 ,IINCOME VER!IFICATION (FOR EMPLOYED PERSONS) The undersigned ,employee has app llied for a rental unit located in a, project ·financed under the MuHifami y Revenue 18ond 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 cunrent annual income from wag,es; overtime ; bonuses., oo:mmissions or any other form of compensat on received on a regular basis .. EMPLOYER Annual Overtime Bonuses Commissions Wages Current Base Pav (Gross) Othe:r Income Avg. T,otal Hours Worked Weekly Total Current Income ·------- Year-to-Date Income ------- I Pay Period: I ]' Weekly I [ 1 Bi-weekly I [ J MonthlL 11 _] Ottler Do you anticipate an ·ncrease ·n the base pay over the next 12 months? □ Yes □ No llf so, please, indicate the amount of anticipated increase $ ____ per ___ _ start date: ---- NOTE TO EMPLOYER: This form is an estimate of anticipated ,eamings so lely for the pu ~pose of determi n i ng income status. This form does not constitute a promise by the emp,loyer to the employee· ,of guaranteed wag:es, bonuses or ra·ses. I hereby certify that the statements above, are true and oomplete to the best of imy knowledge . Date Employer Signature T iitle Empil:oyer's Address Emp loyer's Phone Number APPLICANT 197 hereby grant you permiss·on to disclose my· income to ______________ in order that they ma.y determine my income el itgibilitY for rental of an apartment located in theiir pmject which has been financed under the MulHfami:ly Revenue Bond P1rogram . Date Print Name (Resident) Please send to : (Management Co. orOwneir) Signature (Resident) 198 1:NCOME VERIFICATION (for .self-employed pers ,onsl I hereby a:tta:ch copies ,of my individual federa '-and state income tax returns for the immediately ,p.receding calenda 1r year and oerUfy that the i nformation shown in such income· tax returns is true and comple~ to the best. of my knowledge,. Signatur-e Date 199 INCOME VERIFICATION (for Sociat Securiity recipients) TO: SOCIAL SECURITY ADMIN ISTRATION Ladies and Gentlemen: I! hav,e applied for a rental unit located ·n 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 connecfon with my application for a rental unl, I hereby authorize the Department of Social. Services to refea.se to _________________ the specific informati:on requested be l ow~ Date: ____ _,,.. _____________________ _ Signature : _________________________ - Socia ll Security No.: ________ _ Name (Print),~------------- Address(Print) ______________________ -__ Monthly Benefits Began/\Nill IBegin: Social. Security Benefit Amount: $ _____________________ _ Other Benefit(s): .. ________ _ Medicare Deductions:$ ----------~ Are· be efits expected to change? [ ] Yes f ] No If y,es, p lease state -date and amount: Date: ~---------of change Amount$ _______ _ 200 If recipient ·s not receiving fulll benefit amount; pl:ease· indicate reason and date recipient will start :receiving fuH benefit amount Reason; Date of Resumption: · Amount ---------------- Date: Signature: Title: Please send form to: 201 INC,OME VERIFICATION ,(for Department Social Servioes r,ecipients) TO: CAU IFO:RNl:A DEPARTMENT OIF SOCliAL 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 ~ncome statement of a prospective tenant must be stringently verified .. In ,connect,ion with my app.lic-ation for .a 1rental unit, I hereby authorize the Department of Social Services to r,elease to _____________ the, specff,ic i nformation r:equested below: Date : _________________________ _ Signature :. _________________________ _ Casel:oad Number: ---------- Name (Print): _________ _ Case Number: Case Worker: ----------- 1. Number of persons included in budg.et: __________ _ 2. Tota ·I monthly budge $. _______________ _ (a) Amount o,f grant$ ______ _ (b) Date aid last began :. _______ _ (c)Other inc-0me and source:. ________________ _ {d) Js other income included in t,otal budget? □ v :es D No 3. Please specify type· of a·d: (AFDC. FR1 Food Stamps. ANB . MediCall, Etc.):. ___ _ 4. If recipient is not r,ec-eiving full grant. please indicate reason : ( ] Overpayment due to client's failur:e to report other Income [ 1 Computation error I[ ] Other :,_~--------------~------- 202 Date· when full grant wiH resume: ___ .......... ---------------- Date· ·-------------- Case Worker's. Signature·: ________ _ Telephone: ___________ _ District Off' ce: -------------- Your very eady response W1iH be .appreciated . Pl'ease return form to : 203 DECLARATION OF NO INCO:ME As managing ag,ent:s for ___________________ _ (Name of Development) assisted by the Low :noome Housing Program , we a re required t o verify all income. To comply with this requirement, we ask your •Cooperation in sup,p,lying th,e information requested i n the Gertificatian below. This information wm be held i n s,trict confiden ce and used only fair ·t he 1purpose of estab :r shi ng el igibility. CERTI FICATION Name of Management Company By : Name and T:itle I, ___________ _. do he eby certify that I do NO~T recei ve income from ANY source . I understand soumes of income inc!lude , but are not limited to the following: Employment Study Pensio ns Unemployment Self Emp loyment General Ass i stance Compensation AFDC Oi1sab :lity Socia I Secu i:;ity 551 Uni:on Benefits Workers Compensation Retirement Funds Family Support Chif.d Support Alimony Ann uities Education GrantsJVVork Income from .Assets I understand Uiat should I become gaiinful!ly employed or beg in irece ·ving income from any source,, I must report t he informati on t o the manager imme diately. I certify that the foregoing 1 infom,ation .is true ·, •complete and corntot. l nqui :ries. may be made to v,erify statements herein . ,I also u nderstand that fa l se statements or omissions .ar:e grounds for disqil!laHfi.cation and/or prosecution under the ful extent of Californ ia law. Si1gnatur-e Date Witness s ·gn ature Date 204 Support Verification S·oun::e 's Mailing Address : _______ _ Phone#:·---------- Fax #: ----------- IReoip,ient: Federal law r-e quires that we verify the annual iincome of aH person:s ap-p .ly,ing1 for admiss ions. to, or liviing in a ,community that offers affordable housing. This community ,qperates under the guidellines of Section 42 of the Interna l Reven ue• Code •. 'fo comp·ly with these equirements , we ask your · cooperation in sup :plying the imorm1ation requested below regiarding· the above re •ferenced mdividuals .. This :informat· on wiil be used only for determ ination of eligib iliity aindior .rent ,oomputati:on . You wi ll notice a release of information is .authorized by the apiP'licant/tenant''s signature be,fow. You .r assistance in compr ting this form a-ccurately and t 'mely is greatly appreciated! .AppH ,c ant/Te ,nant Release Stateme -nt Applicam/Tenant Name: II hereby authorize the re lease of the following information1 in order to, determine ,my eligibi lllty for the Bond Progr.am.. Please· ,complete the fo l!'m in full and return it to the MANAGEMENT COMPANY at your ea r liest convenience . 205 Please complete the following If the monies are based on a ;percenta.ge of the paryor 's income,, P•lease indicate the averag·e amount per period . Tvne of Benefit Amount IFreauencv [ ] Child S uppo 1l1 ·( ) weekly( ) mon~hly ( ) vearlv ( ] Fa mi iSy Support ( ) weekly( ) monthly ( ) y,ear lv [ I AJ'imony ( ) weekly( ) monthty ( } -yea r ly [ ] Other ,( ) weekly ( ), monthly ( ), (Please l1ist -yearly type) . Are monies paid to • offset an AFDC grant? ( J Yes [ ] No Do yo u anticipate any changes in the next 12 months? I ] Yes ( ] No Comments .: ________________________ _ of Source: Signature SSN#:-~~~---------------- Date Com,pJeted form: ___________ _ 206 EXHI BIT NO. 4 TO AFFORDABLE HOUSING AGREEMENT CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE FOR TH E [MONTH/QUARTER] ENDING __ _ The undersigned , -----~-----' as the authorized representative of __________ (the "Affordable Housing Owner"), has read and is thoroughly fam iliar with the provisions of the Affordable Housing Agreement by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the City of Moorpark (the "City"), dated as of ________ ,, 2017. As of the date of this Certificate, the following numbers of completed residential Units in the Project (i) are occupied, or (ii) are currently vacant and be ing held available for such occupancy and have been so he ld continuous ly since the date a Very Low Income Tenant or Low Income Tenant vacated such Unit, as indicated: Occupied by Very Low Income Tenants Number of Units: ------------ O cc up i e d by Low Income Tenants Number of Units: ___________ _ 0ccupied by Moderate Income Tenants Number of Units: Held vacant for occupancy continuously since last occupied by Very Low Income Tenants and Low Income Tenants: Vacant Units Number: ________ _ Occupied Units Number: ---------- Very Low Income Tenants and Low Income Tenants who commenced occupancy of Units during the preceding [month/quarter): Very Low Income: Units Nos.: ----------------------- 207 Low ncome: Units. Nlos . ------------------------ Moderate l!ncome : Number of Units: Atta!clhed is, a separate sheet (the ''Bond Program Repo :re') Jisting, .among ot'he !r items, the following information for each apartment Unit in the· Project: the number of each apartment Unit,. 1he occupants of each Unit. the rental paid for each Un[t and the size and number of bed rooms of each Unit. It a !tso, indicates which Units are 01:-0up ·:ed lby Low Income Tena.nts and Very Low llncome Tenants and Modem ilncome Tenants and which Units became Low Income Units and Very Low income Units and Moderate Income· Tenants during the preceding [month/qua:rt,er]. The information contained thereon is true and accurate. The u dersigned hereby certifies. that ,(1) a revi:ew of the activities of the Owner and ·Affordable Housiing Owner during suc!h ~month/qua ,rter], and of OWn.ers and the Affordable Housing Own ,er's performance under the Affordable Hous,ing Agreement among Owner, Affordable • Housing Owner and the City , has been made under the supervision of lhe underslgned; and (2) to Ile best of ·IJe. knowledge of the undersigned , based on the review des,cribed in ,clause (1) h:er-eof, the neither the ·Owner nor the Affordable Housing Owne :r is ·n default under any of the terms and p,rovlisions, of the above, documents l[or describe ~he natUtre• o,f any default i,11 detail· and set forth the measures .being taken to remedy such default: _____________ _ _____________ .] . 208 EXHIB IT NO. 5 TO AFFORDABLE HOUSING AGREEMENT INITIAL LOCATION OF STORMNVATER DETENTION BASIN ON CITY PROPERTY (Attached .) 209 --- I- ' I I I 1, J' ' ! ' I I I ' L r r ,, 1· I I I I I I I I I I I I j I J • I I I I p I I I ,, l I I 'I I I 210 EXHrBtT HG'J FORM ' OIF OVERHEAD POWER EASEMENT lform to lbe proposed by Southern California Edison for a 166kV power rne, but will be subject to .approval by the City Manage·r, and it shall be executed and recorded by Developer prior to issuance of a grading permit for the Property and prior to conveying the City Site to the City. The •easement must be a reasonable easement over the northerly 30 feet {or !less) of the City Site,, permitti ng reasonable use of the easement area by City for pank 1ing . ingr,ess/eg,ress and landscaping. 12853-0018\204'11 326\11 .d'oc Exh:fbit G Page 1 of 1 211 212 12853·00 18\2044326v1 .doc EXHI BIT "H" STORM WAT ER/FLOOD D ETENTI ON BASI N (Diagram attached.) 213 ' I I •1 I I ; : i : I ; • ~ l : I I I I . ' . ~~ t:i : -.~--#~ ~:::z:=:~...,...... ' ii'A:~;;....-~-.. \ ' ' :-1 ' . 1: ' ~1 1 .. 'I I I t .t ,l I : ~ ----.·~"Tl ' :1 • I ! • , ,1 r • If I ' ' II!.• i: -'f : I ~ I() ri JI ~ I I· f ft~ . Ii I ' ) r 214 12853·0018\2044326v1 .Cloe EXHJ BIT u I" F01RM ' OF WELL SlrrE GRANT D,EED (AND CE ,RTIFICATE OF ACCEPTANCE), (Attached .. ) 215 RECOR0 1ING RIEQUESTED BY AND WHEN RECORD ED RETURN TO: C"ty of Moorpark 799 Moorpark. Avenue Mooipairk , CaHfom 1la 9,3012: Attenti'on : City c rerk APN: 511-0~020-071 £SPAC E .ABOV E FOR REOORDER''S USE ONL GRANT DEED (WeJI Site) THE UNDERSIGNED GRANTOR. DECLARES AS FOLLOWS : The undersigned decla res that this Grant Deed is exempt from Recording Fees pursuant to, Cafiforn'a Government Code Section 2.7383 . - Documentary Transfer Tax is $0 (exempt; conveyance ·to a pubfic entity). FOR VALUABLE CONS IOERAT,ION,. rece~pt of which is hereby acknowledged the ESSEX MOORPARK OWNER l.P.,. a California limited partnersh jp ("Gr-antor") he.reby g~ants to the CITY OF MOORPARK (qGranteelil ), the land and located in the County of Ventun;t, State of Califomi·a, more particula:rly described on E>chib] A atta.ched hereto and i ncorporated herein by reference and all improvements thereon (colleclively, th~ "Property'). IN WITN ESS WH EREOF , Grantor has executed this Grant Deed as of the· date s.etforth be ow . Dated: ~---•· 2017 GRAN TOR: ESSEX MOORPARK OWNER; LP., a California limited partnership By: Essex Moorpa~k GP , l.P.1 a Calirfomia limited partnership , its general partner By: Essex Manag,ement Corporation, a Califo mia co:rporation , its general partner By : __________ _ Print Name : _______ _ T,itle: _________ _ 216 A notary 1p ubHc or other officer completing this certificate verifies on ly the I identity of the individuam who siigned ihe document to, whi ch this certificate is attached, an d not ttle truthf utness. accuracy, or val'idity o,f the document. STATE O,F CAUFORN l1A COUNTY OF ----~~ On_______ , 20 lbefoie me --· --._ ___________ _. Notary Pubrc ,. personally appeared --------,,----------~..........,, who ;prov.ad to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subser,ibed to th:e with in instrument. ,and aci<:nowledged to me that. he/she/they executed the same i n his/her/thek auihorized oapaa"lyf es}, and lihat by hislller/thei r siQnature(s) on the instrument the person(s), ,oir the entity upon behalf of w11ich the person(s,) acted, executed the instrument. I certify und,er PENALTY OF PERJURY under the ,laws iof the· State ,of California that th:e 'foreg:o ing paragraph is true an:d 1corTeot. Wff.NESS. my hand and offi'cia l seal . S:ignature: -----~--- (affbc seal: in above space} 217 Exhibit A to Grant Deed J..,EGAL DESCRIP TI ON A PORTl ,QN OF LOTT OF THE MAP OF A PART OF T.RACT L OF RANCHO SIMI, IN THE CITY OF MOORPARK . COUNTY OF VENTURA,. STA TE OF CALIFORNrA, AS PER MAP' RECORDED IN B:OOK 51 PAGE 5 OF MAPS, IN THE 0FIF:ICE OF THE COUNTY RECORDER OF SAID COUNTY; DESCRIBED AS FOLLOWS: BEGINNING AT A PO INT 325.00 FEET WEST OF THE SOUTHEAST CORNER OF SAID LOTT,. THENCE . 1ST;·WEST 10,00 FEET TO POINT; THENCE, 2ND : NORTH 20.00 PEET TA POIN!T; THENCE. 3RD: EAST 20.00 FEET TO POINT, THENCE,. 4TH : SOUTH 20 .00 FEET TO A POINT; llHENCE, 5TH; WEST 10.00 F1EETTO THE POINT OF BEGINNING. EXCEPTING THEREFROM 50% OF ALL OIL AND MINERAL R(GHTS IN ANO :UNDER SAU) LAND,. AS RESERV,ED BY WALLY B. HOFFELT,. IN A DEED RECORDED MARCH 28 , 1942 IN BOOK 653 , P:AGE 659 OF OFF 1ICrAL RECORDS. AN:v ·AND ALL RfGHT TO ENTER 1IN OR UPON THE SURFACE, OR WITHIN 500 FEET OF THE PRESENrr SURFACE •. MEASURED, ViERTICALL Y, FROM SUCH SURFACE WAS QUITCLAIMED BY WALLY B. HOFFIEL T l1N A DEED RECOROED 1 FEBRU~RY 11. 1958 IN BOOK 1589, PAGE 1·53 <QF OFFIC IAL RECO:RDS . ALSO EXCEPTING THEREFROM AN UNOJVIOED 25% OF AN UNDIVIDED ONE- HftJLF INTEREST IN AND T,Q THI= TOTAL OIL AND MINERAL RIGHTS 1N ANO UNDER SAfD ,LAND, WITHOUT HOWEVER; THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITH IN 500 FEET OF THE PRESENT SURFAC E !MEASURED VERT[CAlLY THEREFROM. ·As RESERVED BY RILEY SPENCER AND DORA '=· SPENCER ,, IN A DEED RECORDED FEBRUARY 4. 1958 IN · BOOK 1158,7, PAGE 274 OF OFF ICIAL RECORDS. 218 CERTIF ICATE OF ACCEPTANCE (California Government Code Section 27281) Th ·s 1is to certify that the interest in real 1property ,conveyed by that certain ,Grant Deed dated ___ _, 2017, from Essex Moorpark Owner, LP. to the City· of Moorpa 1k, which is a .political corporation , iis hereby accepted by the undersigned officer on behalf of the City of Moorpark pursuant to "tbe authority conferred by .action ,of ·tile City of Moorpark on ___ _. 2017 and the grantee consents to, recordation thereof by its duly authorized officer. Dated: ____ , 201'7 Steven Kueny, City Manager ACKNOWLEDGMENT 219 A .notary publ ic or 01h er officer oo.mpleting ffllis, certificate ve ri fies on ty the id.ent ity of the ind ivid 11al Who, signed the docu ment to which this certificate fs. attached, a.11:d' not the truth fulness.,, accuracy,. or validity of that dooument. state of California Cou nty ,of ______ _ ) ) On __________ ~. before met ___________ _, ( sect name and title oUhe afficer) Nota1ry Publi c, personally appeared -----------------· who proved to me on the bas 1is of satisfac1ory eVi1denoe to be· the person(s) whose name(s) is/a r-e subscribed to the· within instrument and acknowledged to me that he/she/they executed the same ·n hislherltheir authorized capacity(ies),, ,and that by his/he r/thei · signaturai(s) on the instrument the person(s), or tt1e· eri1tity upon behaW of which the person(s) acted, executed the instru ment. I certify under PENAL TY OF PERJURY under the raws of the State of Calii orn fa that the fo:regoing paragraph is. true and correot. WITN ESS my hand and offlcia sea t Si,gnature.-------------(Seal~ 220 SCHEDU LE 1 SCHEDULE OF PERFORMANCE Design Phase: Desig n has been completed Bond / Tax Certificate Application: May 19, 2017 (Tax c red it application would follow shortly thereafter.) Subdivision Mapping: Estimated to be·September, 2017. Conveyance to Affordable Housing Owner entity (after delivery of organi zational documents for Affordable Hous ing Owner to City): October, 20 17 Plan Check/ Building Permits: May 31 , 2017 Evidence to City of all debt/equity funds fo r all Project costs (with comprehensive Project budget): August, 2017 Close Bond Financ ing: October, 2017 Construction: 28 months from start of grading, but no later than December .31, 2020. Lease-Up: approximately 11 months 12853-00181204~326vt .doc 221 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 2022000082017 Recorded in Official Records Venlura Counly Clerk-Recorder Mark A. Lunn 08/04/2022 08:51 AM VEN CORTEZE Titles: 1 Pages: 96 Fees: $0.00 EXEMPT FROM Rt:t;UKucr<'S FEES Pursuant to Government Code 6103 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P. THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 222 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, LP. This First Amendment to the Development Agreement ("First Amendment") is made and entered into on August 2, 2022, and is an amendment to that certain Development Agreement ("Agreement") that was made and entered into on April 17, 2017, and recorded on April 17, 2017 by Instrument No. 20170417-00050720-0 by and between the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as "City"), and ESSEX MOORPARK OWNER, L.P., a California limited liability company ("Developer"). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this First Amendment to the Agreement, City and Developer agree as follows: 1. Recitals. This First Amendment is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: a. Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. b. Developer is the owner of real property within the City, more specifically described in Exhibit "A" attached hereto (referred to hereinafter as the "Property"). c. Prior to, and in connection with approval of the Agreement, the City Council reviewed the project to be developed pursuant to the Development Agreement as required by the California Environmental Quality Act ("CEQA".) The City Council found that the Mitigated Negative Declaration ("MND") and Mitigation Monitoring and Reporting Program ("the MMRP") adopted by Resolution No 2007-2611 to be applicable to the Agreement and that no changes or new information within the scope of State CEQA Guidelines Section 15162 required the preparation of a new or subsequent environmental document in connection with the approval of the Development Agreement. d. Prior to approval of the Agreement, the City had approved General Plan Amendment No. 2004-05 ("GPA 2004-05"), Zone Change No. 2004-04 ("ZC 2004-04"), and Residential Planned Development Permit No. 2012-02 ("RPO 2012-02"), including all subsequently approved modifications and permit adjustments to RPO 2012-02 and all amendments thereto (collectively "the Project Approvals"; 2 223 individually "a Project Approval") to provide for the development of the Property with a 200-unit residential apartment complex and the construction of certain off-site improvements in connection therewith ("the Project"). e. Thereafter, the Parties entered into the Agreement with respect to the Property on April 7, 2017, and the Agreement was recorded on April 17, 2017 by Instrument No. 20170417-00050720-0. f. In order for Developer to achieve a financial plan to construct the Project, as well as to provide the housing opportunities for residents and to assist in advancing the City's state-certified Housing Element, the Parties desire to amend the Agreement to change the Project from one that provided that fifty (50) units to be affordable to qualifying income families to one that provides that 200 units, one hundred percent (100%) of which to be affordable to qualifying income families and thereby meet the diverse housing needs of the community, except for two onsite property manager units which shall be unrestricted. g. In consideration of the increase in the number of affordable housing units to be included in the Project, the City has agreed to provide reductions in certain development impact fees and to provide for a deferral of some development impact fees in the form of a long-term loan to the Developer, which changes are reflected in this First Amendment. h. On July 27, 2021, the Planning Commission of the City commenced a duly noticed public hearing on the environmental determination, and this First Amendment, and at the conclusion of the hearing recommended approval of the environmental determination and this First Amendment. i. On September 1, 2021, the City Council commenced a duly noticed public hearing on the environmental determination and this First Amendment, and at the conclusion of the hearing, made an environmental determination introduced Ordinance No. 490 to approve this First Amendment. On September 15, 2021, the City Council adopted Ordinance No. 490 approving this First Amendment. 2. Conditions to the Effectiveness of this First Amendment. In addition to the condition in Section 16 of this First Amendment, the effectiveness of this First Amendment is conditioned upon the occurrence of the following on or before October 29, 2022: (i) the sale of the Property to the Affordable Housing Owner (as defined below); (ii) the assignment of the existing Affordable Housing Agreement to the Affordable Housing Owner and the 3 224 execution and recording of the Amended and Restated Affordable Housing Agreement attached hereto as Exhibit "D" (hereinafter referred to as the "Restated Affordable Housing Agreement"); (iii) the execution and delivery by Affordable Housing Owner of a promissory note and deed of trust in the forms attached hereto as Exhibit "E" (hereinafter referred to as the "City Loan Note" and the "City Loan Deed of Trust"), and the recording of such City Loan Deed of Trust against the Property (excluding the City Site); and (iv) the conveyance by Affordfable Housing Owner to City of the City Site. 3. Amendment of Section 1.5. Section 1.5 of the Agreement is amended to read as follows: All of the units at the Project (except onsite manager's units) shall be Affordable Units rented to individuals and families whose incomes do not exceed those specified by the Restated Affordable Housing Agreement-at rents no greater than those set forth in the Restated Affordable Housing Agreement (the "Affordable Units") or the Regulatory Agreements (as defined below) encumberinig the Property (it being understood that the rents under the Restated Affordable Housing Agreement shall apply to the units restricted thereunder if they are lower than other Regulatory Agreements). The Project shall be restricted and encumbered by both the Restated Affordable Housing Agreement and such Regulatory Agreements. The City and Developer acknowledge and agree that the Developer shall apply for, qualify, develop and finance the Project in a manner that qualifies for tax exempt bond financing and federal low- income housing tax credits. 4. Amendment of Section 3.2. Section 3.2 of the Agreement is amended to read as follows: Restrictions on Transfer. The restrictions contained in this Agreement placed upon any Transfer to any Transferee are imposed because the qualifications and identity of Developer are of particular concern to the City, and it is because of those qualifications and identity that the City has entered into this Agreement with Developer. Except as permitted herein, Developer shall not Transfer all or any part of its interest in or rights under this Agreement, and/ or any part of its interest in or rights to the Site and/or any of the Improvements constructed thereon, without the prior written approval of City. City's approval shall be granted or withheld in City' s discretion, but shall not be unreasonably withheld, delayed or conditioned. Following a Transfer pursuant to this Agreement with City consent and the written assumption by the Transferee of the obligations Transferred, the Transferor shall be released from any further liability thereafter arising with respect to the obligations Transferred. At any time Developer desires to effect a Transfer requiring the consent of City under this Agreement, Developer shall, except as expressly provided below in this Section, request consent from the City in writing and shall submit to City any 4 225 proposed agreement evidencing the proposed Transfer (collectively, the "Transfer Documents"). City agrees to notify Developer in writing of its decision with respect to Developer's request for consent to such Transfer, as promptly as possible, and, in any event, not later than thirty (30) days after City receives the Developer's written request for consent to the transfer and the Transfer Documents; provided, that, if City requires additional time, it may unilaterally extend the approval or disapproval of such Transfer for up to an additional thirty (30) days by providing written notice to Developer of such required extension within the initial thirty (30) day period. Notwithstanding the foregoing, Developer has entered into an Agreement For Purchase and Sale and Escrow Instructions ("Danco Purchase Agreement") with Danco Homes LLC ("Danco"), a developer experienced in the development and operation of low-income multifamily housing communities. Pursuant to the Danco Purchase Agreement, Developer shall sell the Property to a limited partnership (the "Affordable Housing Owner") that has Danco or its affiliate as the administrative general partner to acquire, own, and operate the Project in accordance with this Agreement and the Restated Affordable Housing Agreement. The Affordable Housing Owner intends to finance the costs of development of the Project in part with tax credit equity and tax-exempt bond financing and the entire Project will be restricted to low-income use pursuant to regulatory agreements with the California Tax Credit Allocation Committee and the issuer of the tax-exempt bonds (the "Regulatory Agreements"). The Developer intends to assign all of its rights, title, interest and obligations under this Agreement and the Restated Affordable Housing Agreement and their accompanying exhibits to the Affordable Housing Owner and the Affordable Housing Owner shall execute and record the Restated Affordable Housing Agreement concurrently with the acquisition of the Property from Developer. Upon such assignment, all references to the Developer hereunder shall be a reference to the Affordable Housing Owner. The sale of the Property and the related assignments of this Agreement and the Restated Affordable Housing Agreement to the Affordable Housing Owner are hereby approved by the City, subject only to City's approval of the Transfer Documents and receipt of a copy of the limited partnership agreement and LP-1 of the Affordable Housing Owner. 5. Amendment of Section 3.3. Section 3.3 of the Agreement is amended to read as follows: No Other, Separate Conveyance of a Portion of the Property or Project. Except for the conveyance to the Affordable Housing Owner, Developer shall not convey any portion of the Property or Project separately from any other portion but shall only convey any interests concurrently and to the same purchaser, and only to a purchaser reasonable approved in writing by City (which will consider the reputation and experience of the purchase in owning and operating affordable rental units), and as provided in Section 3.2 and 3.4. As a condition to any conveyance by Developer, Developer 5 226 shall execute, acknowledge and record a separate agreement (i.e., Assumption Agreement, whereby the Transferee agrees to assume all obligations of the Agreement. 6. Amendment of Section 3.4. Section 3.4 of the Agreement is amended to read as follows: Release Upon Subsequent Transfer. Upon the sale or transfer of Developer's interest in the Property to the Affordable Housing Owner or any other single purchaser (or any such purchase or subsequent purchaser's sale of the entire property), Developer or any such subsequent purchaser (as applicable), shall be released from its obligations hereunder with respect to the Property subsequent to the effective date of the sale or transfer, provided that the seller or transferor (i) was not in breach of this Agreement at the time of the sale or transfer, and (ii) prior to the sale or transfer, delivered to City an Assumption Agreement, duly executed by purchaser or transferee and notarized by a notary public, where the purchase expressly assumes the obligations under this Agreement with respect to the Property. Failure to provide an Assumption Agreement hereunder shall not negate, modify or otherwise affect liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise provided in this Agreement. 7. Amendment of Section 6.3. Section 6.3 of the Agreement is amended to read as follows: Development Fee Per Unit. As a condition of the issuance of a building permit for each residential unit within the boundaries of the Property, Developer shall pay City a one-time development fee as described herein (the "Development Fee"). The Development Fee may be expended by City in its sole and unfettered discretion. The amount of the Development Fee shall be Eight Thousand Six Hundred seventy-five dollars ($8,675.00) per residential unit. Beginning in 2025, the fee shall be adjusted annually commencing January 1, 2025 by the larger increase of (a) or (b) as follows: (a) The Consumer Price Index (CPI) increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Long Beach/Anaheim metropolitan area during the prior year. The calculation shall be made using the month of October over the prior October. (b) The calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period available on December 31 of the preceding year. 6 227 In the event there is a decrease in both of the referenced Indices for any annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 8. Amendment of Section 6.7. Section 6.7 of the Agreement is amended to read as follows: Park Fees and Public Art Fee. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a one-time fee in lieu of the dedication of parkland and related improvements ("Park Fee"). The amount of the Park Fee shall be Eight Thousand six hundred seventy-five Dollars ($8,675.00) for each residential dwelling unit within the Property. If the Park Fee is not paid by January 1, 2025, the Park Fee shall be adjusted annually commencing January 1, 2025 by the larger increase of (a) or (b) as follows: (a) The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Long Beach/Anaheim metropolitan area during the prior year. The calculation shall be made using the month of October over the prior October. (b) The calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period available on December 31 of the preceding year. In the event there is a decrease in both of the referenced Indices for any annual indexing, the Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Developer agrees that the above-described payments shall be deemed to satisfy the parkland dedication requirement set forth at California Government Code Section 66477 et seq. for the Property. Developer also understands that because the above-described payments shall be deemed to satisfy applicable parkland dedication requirements, a public trail through the Property shall not be required. Additionally, prior to the issuance of the building permit for the first residential dwelling unit within the Property, Developer shall pay a one-time fee for public art, notwithstanding anything to the contrary in the City's municipal code ("Public Art Fee"). The amount of the Public Art Fee shall be Four Hundred Twenty Thousand Five Hundred and No/100 Dollars ($420,500.00), and shall be payable in eight (8) increments of $52,562.50, with each increment payable as a condition to the issuance of a building permit for each of the eight (8) buildings in the Project. If the Public Art Fee 7 228 is not paid by January 1, 2025, the Public Art Fee shall be adjusted annually commencing January 1, 2025 by the larger increase of (a) or (b) as follows: (a) The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Long Beach/Anaheim metropolitan area during the prior year. The calculation shall be made using the month of October over the prior October. (b) The calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period available on December 31 of the preceding year. In the event there is a decrease in both of the referenced Indices for any annual indexing, the Public Art Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 9. Amendment of Section 6.23. Section 6.23 of the Agreement is amended to read as follows: Conveyance to City of City Site; Construction Easement. As used herein, the term "City Site" shall mean the property described on Exhibit "B". Provided the City Manager shall have approved of the condition of the City Site (and City has been inspecting the City Site pursuant to a separate Right of Entry and Access Agreement and title to the City Site, and an owner's title policy for the City Site in a form reasonably acceptable to City is committed to be issued to City at Affordable Housing Owner's cost by a title company acceptable to City (and with a reasonable liability amount), then Affordable Housing Owner shall convey the City Site to City by Grant Deed in its "as-is", "where-is" condition and "with all faults", without any representations, warranties or guaranties of any nature. If at any time the City Manager determines that a construction easement for the City is necessary within the slope on the southerly fifteen (15) feet of the Property for purposes of improving the City Site and City Manager requests such an easement in writing, then Developer (or Affordable Housing Owner as applicable) shall grant a reasonable construction easement to City which shall not be subordinate to any deeds of trust or other liens (except liens for property taxes and assessments not yet due) and shall expire five (5) years after the last Certificate of Occupancy is issued (and the City Manager is hereby authorized to execute a Certificate of Acceptance for such easement). 8 229 10. Section 6.26 of the Agreement is hereby deleted in its entirety and replaced with the following: Conveyance of Land for Street Widening; Relocation and Undergrounding of SCE Lines. Substantially concurrently with the conveyance of the Property to Affordable Housing Owner (i.e., immediately after such conveyance), and subject to the issuance of a reasonable owner's title policy to City at the cost of Affordable Housing Owner, Affordable Housing Owner shall, in order to enable the City to widen High Street, convey to the City by grant deed the land described as follows: Such conveyance shall be free of all deeds of trust and other liens (except for assessments not yet payable) but otherwise the land shall be conveyed in its "as-is", "where-is" condition and "with all faults", without any representations, warranties, or guaranties of any nature. Affordable Housing Owner shall promptly deliver a title report for such land to City for review. In connection with the development of the Project, Developer shall make commercially reasonable best efforts to relocate and underground the existing overhead Southern California Edison ("Edison") 66kV utility lines and poles ("Utility Facilities") located on the Property and the City Site at its sole cost and expense no later than thirty-six (36) months following the acquisition of the Property by the Affordable Housing Developer. The Developer and City acknowledge that Edison shall determine the location and path of the underground Utility Facilities in compliance with Edison regulations and state law, and in the event that the hard costs (not soft cost, including without limitation project management fees and costs, and design, engineering and administrative fees and costs) of undergrounding the Utility Facilities on the City Property exceeds $500,000, Developer shall not be required to underground the Utility Facilities on the City Site and Developer shall instead relocate the Utility Facilities as set forth in the Utility Facility redesign by BJ Palmer & Associates and depicted on Exhibit "J" attached hereto (the "Revised Plan") and Developer shall pay $400,000 to the City within thirty (30) days after completion of the relocation of the Utility Facilities on the City Site. 11. Replacement of Section 6.35; Addition of Section 6.40. Section 6.35 of the Agreement is hereby replaced with the following: Annual Community Services Fee. Upon the issuance of a Zoning Clearance by the City for occupancy of the first unit of the Project, and on each anniversary thereof, Affordable Housing Owner shall pay to City a community services fee of Eight Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual payments under the City Note (as defined in the Development Agreement). 9 230 The following new Section 6.40 is hereby added to the Agreement: City Financing of Certain Development Fees through a Residual Receipts Loan. Developer has requested and City has agreed to finance the payment of certain portions of City development impact fees required in Sections 6.3 (Development Fee), and 6.7 (Park Fees and Public Art Fee) to be paid for construction of the Project in the form of a $3,890,500 fifty- five -year Residual Receipts Loan (the "City Residual Receipts Loan") as described below. The City Residual Receipts Loan shall be evidenced by 1he City Loan Note and secured by the City Loan Deed of Trust, which include a term of 55 years from completion and simple interest at 3.00% per annum, which shall be repayable solely from the City's pro rata share of 50% of Residual Receipts (which will be shared by other public lenders making loans required to finance the development). The City Manager shall have the authority to adjust the residual receipts percentage in the City Loan Note before it is executed in order to be consistent with the foregoing. The City Residual Receipts Loan shall be secured by a deed of trust encumbering the Project that is subordinate only to the liens of the Project's bond financing and any state agency debt that is required by regulation to be senior to the City's Residual Receipts Loan, and the City Manager shall have the authority to execute reasonable subordination agreements in connection therewith. The term "Residual Receipts" in a particular calendar year shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses. "Gross Revenue" means for each calendar year, all revenue, income, receipts, and other consideration actually received by the borrower from operation and leasing of the Project. Gross Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income to Affordable Housing Owner (Borrower); (2) The proceeds of business interruption or similar insurance; (3) Any payment received in consideration for the leasing or other use of any portion of the Project; ( 4) Subject to the rights of senior lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the Project (or applied toward the cost of recovering such proceeds); (5) Subject to the rights of senior lenders, condemnation awards for a taking of part or all of the project for a temporary period; and (6) Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital contributions or other similar advances. "Annual Operating Expenses" with respect to a particular calendar year means the following costs reasonably and actually incurred for operation and maintenance of the project to the extent that they are consistent with an annual independent audit performed by a certified public accountant 10 231 using generally accepted accounting principles: (1) Property taxes and assessments imposed on the property; (2) Debt service and associated fees currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the project) on loans associated with development of the project and approved by the City in the approved financing plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract approved by the City; (4) Premiums for property damage and liability insurance; (5) Any annual license or certificate of occupancy fees required for operation of the project; (6) Annual regulatory compliance monitoring fees payable to the City; (7) Security services; (8) Advertising and marketing costs; (9) Cash deposited into reserves for capital replacements of the project in an amount to be approved by the City as part of the approved financing plan; (10) Partnership management fees in the amount approved by the City as part of the approved financing plan; (11) Utility services not paid for directly by tenants, including without limitation, water, sewer, and trash collection; (12) Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair, janitorial supplies and services; (13) Social services fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in relation to any approved financing; (15) Extraordinary operating costs specifically approved by the City in its reasonable discretion; (16) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves; (17) Reasonable accounting fees and legal fees; (18) Payments of Deferred Developer Fee; and (19) Other ordinary and reasonable operating expenses approved by the City in its reasonable discretion and not listed above. Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or other non-cash expenses or, any amount expended from a reserve account. 12. Amendment of Section 7.1. Section 7.1 of the Agreement is amended to read as follows: Commitment of Resources. At Developer's expense, City shall use good faith efforts to commit reasonable time and resources of City staff to work with Developer on the expedited and parallel processing of applications for Project Approvals and all Subsequent Approvals and Building Permits for the Project area and if requested in writing by Developer shall use overtime and independent contractors whenever reasonably possible. Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, any expedited and parallel processing. City shall also use good faith efforts to commit reasonable time and resources of City staff to work 11 232 with the Ventura County Water Protection District for the processing and permitting of the plans for the undergrounding of the channel. 13. Deletion of Sections 7.9 and 7.17. Sections 7.9 and 7.17 of the Agreement are hereby deleted in their entirety, and each is hereby replaced with "Intentionally Omitted." 14. Amendment of Section 7.18. Section 7.18 of the Agreement is amended to read as follows: Storm Water/Flood Detention Basin. City agrees that Developer may use the storm water/flood detention basin located on the City Property and depicted on Exhibit "H" (attached as Exhibit Hof Instrument No. 20170417- 00050720-0) for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Developer to that affect. 15. New Section 7 .20. Section 7 is amended to add a new Section 7 .20 to read as follows: Reporting. Following the commencement of marketing of the Units, Developer shall provide City with quarterly reports identifying the Units leased, and such other information as City may reasonably request (and such reporting shall be in addition to any reporting required in the Restated Affordable Housing Agreement). If the project is financed through tax credits, the submittal of copies of the reports required by the Tax Credit Allocation Committee shall satisfy the reporting requirement hereunder. City agrees to exercise good faith efforts to assist Developer in connection with implementation of the Developer's marketing efforts, including assistance with promotion, marketing and affordable renter qualification activities, and by incorporating project materials, presentations, mailings, information and announcements into City's general housing assistance presentations, mailings and materials; provided, that, unless City agrees otherwise in its sole discretion, City shall not be required to develop any separate Project focused materials or programs or incur any out-of-pocket expenses in connection with such assistance to Developer. 16. New Exhibit for DA Exhibits D and G. Exhibits D and G to the Development Agreement are hereby deleted and each is hereby replaced by the new Exhibit "J" attached hereto (at the very end of this Amendment). 17. New Schedule 1. Schedule 1 of the Development Agreement (which is referred to in Section 5.1 of the Development Agreement) is hereby deleted and is replaced with the schedule attached hereto as Exhibit "F". 18. Deletion of Exhibit "C". Exhibit "C" (Purchase Agreement) attached to the Agreement is hereby deleted in its entirety and replaced with "Intentionally 12 233 Omitted." 19. Operative Date of First Amendment. This First Amendment shall become operative on th date that Ordinance No . that approves this First Agreement becomes effective pursuant to Government Code Section 36937, subject to Section 2 of this First Amendment. 20. Authority. By their signatures below, the individuals signing on behalf of Developer and City warrant that they have the authority to execute this First Amendment on behalf of Developer and City, respectively . 21. Entire Agreement. The Development Agreement and this First Amendment, contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements, understandings, oral written, are hereby merged herein, except that nothing contained herein is intended to or shall abrogate, extinguish or supersede the Affordable Housing Agreement and any other City land use entitlements or conditions imposed thereby that are applicable to the development of the Property. Effect of Amendment. Except as amended herein, all other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Moorpark and the Developer have executed this First Amendment to the Development Agreement on the date first above written. CITY OF MOORPARK ~~ JaiceS.Parvi'n M yor OWNER/DEVELOPER ESSEX MOORPARK OWNER, L.P.,; a California limited partnership By: Essex Moorpark GP, L.P a California limited partnership, Its general partner By: Essex Management Corporation a California corporation its gen~eral partner . By:_~---~ Print Name: __ ........,...~-~-~V Title: ("ro / . 7 13 234 ALL SIGNATURES MUST BE NOTARIZE D A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached , and not the truthfulness , accuracy, or validity of that document. State of California County of Ventura ) ) on Ju.\.\..\. Z Ce, z.02..:z.. , before me , £, \~ ~"'-J.A.. \f 1,/ 70 (\J _ ~ (in se rt name a nd-title of th e offi ce r) Notary Public, personally appeared _~ ___ W\ __ t..:.,,=:,=--....:(_f_~--------- who proved to me on the basis of satisfactory evidence to b he person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted , executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITN -eeooeoeof ELI SA M, TAYLOR Not ary Public • Califo rn ia : San Mateo County ~ Commission II 23 43362 • xp ir es Jan 25, 20 25 14 235 CITY OF MOORPARK 799 Moorpark Avenue, Moorpark, California 93021 Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I moorpark@moorparkca.gov A notary publ ic or other officer completing this certificate verifies only the identity of t he i nd iv idua l who signed the document to which this certificate is attached, and not the truthfu lness, accuracy, or validity of that document. PUBLIC AGENCY FORM OF ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) On this 1st day of August in the year 2022, before me, Ky Spangler, City Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of sat isfactory evidence to be the person whose name is subscribed to the with in instrument and who is personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity as the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged to me that the City executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and Official Seal City Clerk JA NICE S. PARVIN Mayor DR. ANTONIO CASTRO Co uncilmem ber CHRIS ENEGREN Co un cilmember DANIEL GROFF Councilmem ber DA YID POLLOCK Coun cilm ember 236 A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Ventura ) ) On , before me, -------------------------(insert name and title of the officer) Notary Public, personally appeared __________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _____________ _ (Seal) 16 237 EXHIBIT A LEGAL DESCRIPTION OF PROPERTY Lot 1 of Tract No. 5004 , in the City of Moorpark, County of Ventura, State of California, as per Map recorded in Book 137, Pages 97 to 102 inclusive of Miscellaneous Records (Maps) , and amended map of Tract No. 5004, recorded in Book 146, Pages 1 through 6 inclusive of Miscellaneous Records (Maps), in the Office of the County Recorder of said county. APN:513-0-050-205 17 238 EXHIBIT B DESCRIPTION OF CITY SITE All of Parcel 1 A of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-0108315 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder. EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009 as Instrument No. 20090430-00069389 of Official Records of said County. ALSO EXCEPT THEREFROM that portion lying northerly of the following described line; BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof; 1st Thence, departing said east line South 89°38'32"West 752.05 feet; 2nd Thence, South 27°20'34West 36.75 feet; 3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A. 18 239 EXHIBIT C ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: Essex Moorpark Owner, L.P. c/o Essex Portfolio, L.P. 100 Park Place, Suite 200 San Mateo, CA 94403 Attention: Adam Berry 19 240 EXHIBIT D FORM OF AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (UNDER SEPARATE PAGE) 20 241 Recording Requested By: CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 Attention: City Clerk OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT by and between CITY OF MOORPARK and [AFFORDABLE HOUSING LIMITED PARTNERSHIP] Dated as of , 2021 ----- 21 242 AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be effective as of _______ , 2021, regardless of the date of actual execution hereof, and is entered into by and between the CITY OF MOORPARK, a municipal corporation ("City"), and [AFFORDABLE HOUSING LIMITED PARTNERSHIP], a California limited partnership ("Owner"), and shall upon the recordation hereof, supersede and replace that certain Affordable Housing Agreement between the City and Essex Moorpark Owner, LP. ("Essex") dated April 17, 2017 which was recorded on April 17, 2017 as Instrument Number 20170417- 00050721-0 1/67 in the Official Records of Ventura County, California and was assigned to Owner pursuant to that certain Assignment and Assumption Agreement dated _____ , 202_ ("Assignment Agreement"). RECITALS A. The City and Essex have entered into a Development Agreement dated April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the County of Ventura on on April 17, 2017, which has been amended by a First Amendment to Development Agreement dated ______ , 2021 recorded ______ , 2021 and was assigned to the Owner pursuant to the Assignment Agreement (the "Development Agreement") pursuant to which Owner will construct a residential development consisting of 200 apartments (198 restricted units and two unrestricted manager's units) on approximately 10.57 acres (the "Property"), described more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference, which is located within the City of Moorpark. B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential Planned Development Permit No. 2012-02 ("RPO"), and Zone Change No. 2004-04 ("ZC") provide for the development of the Property in such manner and the construction of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC, RPO and Mitigation Monitoring Program, as amended, are collectively referred to as the "Project Approvals". C. The RPO requires that the apartments described on Exhibit No. 2 attached hereto (located as described on such exhibit) be affordable and available to households with income that does not exceed specified levels, as described on Exhibit No. 2, for the Term (as defined in Article 1 below) of this Agreement. D. The Development Agreement requires that this Affordable Housing Agreement be executed and recorded concurrently with the closing of the sale of the Property by Essex to Owner, and that this Affordable Housing Agreement not be subordinate to any liens (except for property taxes and assessments not yet due). E. The Owner intends to finance the costs of development of the Project in part with federal tax credit equity and tax-exempt bond financing, and all of the restricted apartment units (~. 198 of the 200 units) in the Project will be restricted by a federal tax 22 243 credit regulatory agreement; such units being described on Exhibit 2 attached hereto by income level and bedroom count. Two units will be manager's units. Only forty nine percent (49%) of the units in the project (i.e., the 98 units that are identified/described at the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement. NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Owner hereby agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions. Capitalized terms used herein shall have the following meanings. "Affordable Rent" shall mean the rent described in Section 2.9, subject to Section 2.10. "Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low Income Households, Very Low Income Households and Low Income Households described at the end of Exhibit 2 to this Affordable Housing Agreement. "Agreement" shall mean this Amended and Restated Affordable Housing Agreement. "City" shall mean the City of Moorpark, California, a municipal corporation. "County" shall mean Ventura County. "County Median Income" shall mean the Area Median Income for Ventura County adjusted by actual household size as published annually by HCD (California Health and Safety Code 50093(c) and 25 California Code of Regulations Section 6932), or if HCD discontinues such publication, then such reasonable replacement publication as may be selected by City in good faith. "Density Bonus" shall mean the density bonus granted by the City to Owner in connection with the Project pursuant to the Project Approvals. "Development Agreement" shall mean Development Agreement dated April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the County of Ventura on on April 17, 2017, which has been amended by a First Amendment to Development Agreement dated ______ , 2021 and recorded as Instrument No. ______ in the Official Records of the County of Ventura. "Extremely Low Income" shall mean a household income that does not exceed thirty percent (30%) of the County Median Income, adjusted for household size appropriate to the Unit. 23 244 "Extremely Low Income Household" or "Extremely Low Income Tenant" means individuals or households qualified on the basis of a "certification of tenant eligibility" as certified by such individual or household, who have a gross income which does not exceed Extremely Low Income, adjusted for household size. "Extremely Low Income Units" means Units rented to Extremely Low Income Households. "HCD" shall mean the Department of Housing and Community Development (HCD) of the State of California. "Initial Rent-Up" shall mean the period between the issuance of a certificate of occupancy for the first residential unit in the Project and "Stabilization" (as defined below). "Low Income" or "Lower Income" shall mean a household income that does not exceed eighty percent (80%) of the County Median Income, adjusted for household size appropriate to the Unit. "Low Income Household" or "Lower Income Household" or "Low Income Tenant" means individuals or households qualified on the basis of a "certification of tenant eligibility" as certified by such individual or household, who have a gross income which does not exceed Low Income, adjusted for household size. "Low Income Units" means Units rented to Low Income Households. "Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of its rights, powers and responsibilities, or any successor in interest to any portion of or interest in the Project or Property. "Project" is the residential development described in RPO 2012-02 consisting of up to 200 apartments located on the Property, together with structures, improvements, equipment, fixtures, and other personal property owned by Owner and located on or used in connection with all such improvements and all functionally related and subordinate facilities, and all improvements required by the Project Approvals. "Project Approvals" is defined in Recital B above. "Property" shall mean that real property in the City of Moorpark, California described on Exhibit No. 1 . "Stabilization" shall mean the time at which the Project achieves ninety percent (90%) occupancy for ninety (90) consecutive days. "Term" shall mean from the date of recordation of this Agreement until the later of: (i) the date that the Property is no longer zoned for any residential use and cannot be used for any residential use or purpose as a "non-conforming use" and has no residential occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement. 24 245 "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 25 246 enforceable by the City (which may only enforce this Agreement as to the Affordable Units restricted by this Agreement), it is contemplated that such tax credits will necessitate restricting all of the units at the Project (except manager's units) for rent to Extremely Low Income Households, Very Low Income Households and Low Income Households during the periods set forth in the Internal Revenue Code, as the same may be modified by law applicable to the low income housing tax credits (the "Compliance Period and Extend Use Period") and applicable to the tax exempt bonds (the "Qualified Project Period"). 2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to be recorded in the Office of the County Recorder of Ventura County, California concurrently with the closing of the Project Financing, and Owner shall ensure that this Agreement shall be senior in priority to any lien, encumbrance or other matter of record except for property taxes and assessments not yet due and existing easements necessary for the operation of the Project or as otherwise expressly approved in writing by City. The Owner shall pay all fees and charges in connection with any such recordation. 2.3 Use of the Property. Owner represents, warrants, and covenants to develop and operate the Project and Property as a multifamily residential rental property and uses incidental thereto and for no other purposes. Amenities for the Affordable Units shall include, without limitation, air conditioning/heating, plumbing and electrical fixtures, garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solarready, water heater, built-in oven, microwave, stove, bathroom fan, , doors and door hardware, and floor and window coverings. Owner agrees not to convert the Project or any part thereof to any type of common interest development, for-sale condominiums, community apartments, planned development, stock cooperative, hotel, motel, or any type of congregate care or assisted living facility. Owner agrees that they shall not knowingly permit any of the Units in the Project to be used on a transient basis and shall not rent any Unit for a period of less than thirty (30) days. At no time shall any of the Affordable Units be rented to an employee, agent, officer, contractor of any owner of any portion of the Property or Project or of any company affiliated with any such owner, or to any such affiliated company. 2.4 INTENTIONALLY OMITTED 2.5 Rules. In addition to the conditions and restrictions to be contained in leases or rental agreements as provided in this Agreement, ongoing operation of the Project will be subject to reasonable house rules, policies and regulations issued from time to time by Owner and approved by City which approval shall not be unreasonably withheld, conditioned, or delayed ("Rules"). Owner shall submit such Rules to City during the Initial Rent-Up for the City's approval, which will not be withheld, conditioned or delayed. Annually, Owner shall submit any amendments, modifications or changes to such Rules to the City at least forty-five (45) days prior to their proposed effective date 26 247 and all of such amendments, modifications and changes shall be subject to the City's prior written consent, which will not be withheld, conditioned or delayed. If City does not consent, City shall specify the reasons in writing so that Owner can revise the amendment(s), modification(s) or change(s) and re-submit them for City approval, which will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City on an annual basis a certification that the Rules previously submitted to City, as amended, remain in effect (with a copy of the Rules and any amendments). If applicable, this Agreement shall be consistent with any Extended Use Agreement entered into between Owner and the California Tax Credit Allocation Committee. 2.6 Single Owner. All of the Affordable Units shall be and remain owned by the Owner for the term of this Agreement. No Affordable Unit may be sold separately. 2.7 Affordable Units Generally. 2.7.1 Accessible Compliant Units. The Project shall comply with the current California Building Code with respect to the number of Affordable Units that must be compliant with laws regarding disabled persons (including, without limitation, the Americans with Disabilities Act) and shall be reserved for and occupied by persons eligible for such accommodations. Owner shall maintain a waiting list for the affordable accessible-compliant units, shall promptly deliver a copy thereof to City and shall thereafter deliver a copy of the revised list to City whenever the list changes. Should there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant desiring to rent such a unit but all such units are rented, Owner shall add such prospective tenant to the waiting list for the affordable accessible-compliant units. At the earliest possible time an Extremely Low or Very Low or Low Income non-accessible compliant affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low Income tenant who occupies the affordable accessible compliant unit shall be relocated to another affordable unit in order to allow the qualified disabled household to occupy the accessible compliant unit. Owner shall include a provision in the non-accessible compliant affordable lease for any accessible-compliant affordable unit that the non- accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at Owner's cost, as soon as a non-accessible compliant unit becomes available. While any of the affordable accessible-compliant units are not being leased to disabled persons (due to unavailability of such persons to lease), the applicable Affordable Unit shall be leased in accordance with this Agreement. At all times, Owner shall keep City informed in writing of the income level applicable to each accessible compliant unit. The accessible compliant units shall be consistent with accessibility design criteria established by the State of California, and Owner shall promptly make any changes to such units required by new laws or changes in laws. Reasonable accommodation shall be made, as may be requested by specific Extremely Low or Very Low or Low Income disabled tenants in such units, to provide features such as smoke alarms with flashing lights, for instance, if requested by hearing impaired Extremely Low or Very Low or Low Income tenants in an accessible compliant unit. 27 248 2.7.2 [Intentionally Deleted]. 2.7.3 Preference Policies. To the extent permitted by applicable state and federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list for the Affordable Units shall be maintained from which vacancies shall be filled. The waiting list shall be established through a fair process for the selection of the next eligible households to fill the vacancies allowing for priority for City of Moorpark residents to the extent permitted by applicable state and federal law. Details of this process shall be submitted in writing to the City for review and approval prior to the issuance of the first building permit for this project. Additionally, Owner shall submit to City an annual report, no later than January 30 of each calendar year for the pervious calendar year, describing the vacancies filled from households on the list, total vacancies filled and the number of households on the list. 2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will advise City on a quarterly basis in writing of the number of Affordable Units in the entire Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a certificate in the form specified by the City, which is attached hereto as Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City of Moorpark resident who on the waiting list and was given priority. Any reporting schedule less frequent than quarterly must be expressly approved in writing by the City Manager. 2.7.5 Unit Classification. Subject to the rules and regulations of the California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other than for a temporary period (not to exceed 60 days), at which time the classification of the Unit shall be redetermined (provided that upon such reclassification, Owner must remain in compliance with this Agreement). Owner shall use commercially reasonable efforts to prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3 attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner shall make a good faith effort to verify that the income declared by an applicant in an income certification is accurate by reviewing any one or more of the following documents, which shall be provided by the applicant: (a) A pay stub for the most recent pay period; (b) An income tax return for the most recent tax year; (c) An income verification form from the applicant's current employer; (d) An income verification form from the Social Security Administration and/or the California Department of Social Services if the applicant receives assistance from either of those agencies; or 28 249 (e) If the applicant is unemployed and has no tax return, another form of independent verification is needed. In addition to the above-referenced income certification and subject to fair housing laws and the rules and regulations of the California Tax Credit Allocation Committee, eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant units shall submit a letter from a physician or other document acceptable to the City and Owner which confirms the accessibility needs of the applicant. 2.7.6 Lease Provisions. Subject to the rules and regulations of the California Tax Credit Allocation Committee, the Owner shall include provisions in all signed leases or rental agreements for all Affordable Units which authorize the Owner to immediately terminate the tenancy of any tenant occupying an Affordable Unit where one or more of such tenants have misrepresented any fact material to the qualification of such an individual or household as an Extremely Low or Very Low or Low Income Tenant and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably enforce such termination rights (i.e., Owner shall exercise them and not waive them). Each lease or rental agreement for an Affordable Unit shall also provide that the tenants of such Affordable Unit shall be subject to annual certification or recertification of income, as required by the City, and shall be subject to rental increases in accordance with Section 2.11 of this Agreement. 2.7.7 Management Diligence. Owner shall use commercially reasonable efforts not to allow any rent-ready Affordable Unit to remain vacant. 2.7.8 Administration by City: Administrative Fee. City shall appoint a staff person to oversee the implementation of this Agreement, and shall notify Owner in writing of the name and phone number of such staff person and any replacements. On or before the first day of June of each year during the Term of this Agreement, commencing after the first residential occupancy of the Project, Owner shall pay to the City for the administration of this Agreement (and be jointly and severally liable for) an annual fee equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the larger of (a) or (b) below: (a) The percentage increase in the Consumer Price Index during the prior year, which shall be determined by using the Consumer Price Index by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long Beach-Anaheim index). The calculation shall be made by copying such CPI for the month of October to the CPI for the previous October. (b) The annual percentage amount paid to City by the Local Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most recent four (4) calendar quarters divided by four (4 ). 29 250 In the event the CPI or LAIF is discontinued or revised, such successor index with which they are replaced shall be used to achieve substantially the same result, or it there is no successor index, then another index shall be used to achieve substantially the same result. 2.7.9 Lease Provisions. The provIsIons relating to certification and recertification of income in the form of lease or rental agreement used by the Owner for the lease or rental of the Affordable Units shall be subject to review and approval by the City, the approval of which shall not be unreasonably withheld, conditioned, or delayed. If the lease or rental agreement provisions specified in this Section are not approved or disapproved within thirty (30) days after submittal to City, they shall be deemed approved. 2.8 Rent-Up Periods and Occupancy Procedures. 2.8.1 In connection with the Initial Lease-Up of the Project, Owner will adopt outreach programs to locate qualified tenants for the Project and shall establish such procedures for occupancy, rental, and rent grievances as may be reasonably required by the City. Not later than ten (10) days prior to the commencement of marketing, Owner shall prepare and submit to the City for reasonable approval a marketing and outreach program which shall contain, among other things, the following: how a potential tenant would apply to rent a Unit in the Project, including where to apply, applicable income limits and rent levels; support documentation needed such as pay stubs, tax returns, or confirmation of disability, if applicable, a description of procedures Owner will follow to publicize vacancies in the Project, including notice in newspapers of general circulation, including at least one Spanish-language newspaper and mailing notices of vacancies to or contacting by telephone potential tenants on the waiting list maintained by Owner. Notices shall also be given to organizations in Ventura County which provide referrals or other services to persons with disabilities. 2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy (including by damage or destruction), then until the Affordable Unit is repaired/reconstructed (so that it is available for leasing in compliance with this Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2 every five (5) years) per day until the Affordable Unit is placed back in service except that such fee shall not be payable for so long as Owner is diligently attempting to repair or re- build the Affordable Unit in question, as shown by reasonable evidence provided to City. 2.9 Affordable Rent. 2.9.1 Monthly rent charged to Extremely Low Income households shall be no greater than thirty percent (30%) of thirty percent (30%) of County Median Income, adjusted for family size appropriate for the Unit, less the Utility Allowance, all in accordance with California Health and Safety Code Section 50053(b). "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 30 251 2.9.2 Monthly rent charged to Very Low Income households shall be no greater than thirty percent (30%) of fifty percent (50%) of County Median Income, adjusted for family size appropriate for the Unit, less the Utility Allowance, all in accordance with California Health and Safety Code Section 50053(b). "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 2.9.3 Monthly rent charged to Low Income households shall be no greater than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for family size appropriate for the Unit, less the Utility Allowancem all in accordance with California Health and Safety Code Section 50053(b). "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 2.9.4 Utility Allowances will be adjusted annually using the most current "Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667) based on Apartment/Walk Up unit type as posted and updated annually by the Area Housing Authority of the County of Ventura based on the following appliances/utilities to be provided to the units: Natural Gas -Heating, cooking, water heating Water, Sewer, Trash, Other Electric allowance (for lights and other electric uses) 2.10 Alternative Affordable Rent Calculations. If the requirements or practices of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities similarly associated with anticipated financing of the construction of this project, or future prudent refinancing of this project, utilizes definitions, sources of information, etc., other than those which have been herein defined and utilized in calculating Affordable Rent, then the procedure or input which produces the lowest affordable rent, will prevail as to the applicable Affordable Unit restricted by this Agreement. 2.11 Income Recertification; Rent Increases. 2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit to be re-certified on an annual basis on the anniversary date of each such tenant's initial rental date. This recertification shall be submitted in writing to the City within thirty (30) days of such action. 2.11.2 Rents for the Affordable Units may be increased only once per calendar year, concurrently with or subsequent to any increase in the County Median Income when and as determined by HCD. The rents charged for the Affordable Units following such an increase, or upon a vacancy and new occupancy by an Extremely Low 31 252 or Very Low or Low Income Tenant, as the case may be, shall not exceed the allowable rent calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below. 2.12 Increased Income of Occupying Households. Only after the last to expire of the Compliance Period and Extended Use Period or the Qualified Project Period with respect to the Extremely Low Income Units and Very Low Income Units, the following shall apply: 2.12.1 If, upon income recertification, the Owner determines that the household income of an Extremely Low Income Tenant has increased above the maximum allowable household income level of an Extremely Low Income Tenant, but remains equal to or below that of a Very Low Income household, then, except as provided below in this Section 2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty percent (30%) of fifty percent (50%) of the County Median Income for the size household appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to the occupants thereof. In that event, the next available unit that was previously a Very Low Income Unit must be rented to (or held vacant and available for immediate occupancy by) an Extremely Low Income household. 2.12.2 If, upon income recertification, the Owner determines that the household income of a Very Low Income Tenant has increased above the maximum allowable household income level of a Very Low Income Tenant, but remains equal to or below that of a Low Income household, then, except as provided below in this Section 2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to such Tenant shall be not greater than one-twelfth ( 1 /12) of thirty percent (30%) of sixty percent (60%) of the County Median Income for the size household appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to the occupants thereof. In that event, the next available unit that was previously a Low Income Unit must be rented to (or held vacant and available for immediate occupancy by) a Very Low Income household. Notwithstanding the foregoing, any such Tenant shall have the right to request a recertification of income (not later than sixty (60) days prior to the date they are supposed to vacate). If the recertification shows that income is not greater than the maximum allowable household income level due to a documented voluntary reduction of income, then the notice to vacate shall be withdrawn. Until the last to end of the Compliance Period and Extended Use Period or the Qualified Project Period, Owner shall comply with laws and regulations of CTCAC, CDLAC and any separate/additional recorded restrictions or "Regulatory Agreement" required by the Affordable Housing Financing and such requirements with respect to over- income tenants shall prevail. Owner shall promptly deliver to City copies of all Affordable Housing Financing regulatory agreements or similar agreements restricting Units in the Project, and shall notify City and all affected tenants in writing of the expiration of the period at least one (1) 32 253 calendar year (but not more than fourteen (14) months) prior to expiration of the Compliance Period and Extended Use Period or Qualified Project Period, whichever expires later, of any effect on the affordability level of their Affordable Units. Additionally, Owner shall notify City in writing of any re-syndication or extension of tax credit financing and any defeasance or refinancing of bond financing as soon as they become reasonably likely. 2.13 Specific Enforcement of Affordability Restrictions. 2.13.1 Owner hereby agrees that specific enforcement of Owner's agreements to comply with the allowable rent and occupancy restrictions of this Agreement is one of the reasons for the City's issuing the Project Approvals and entering into the Amendment to Development Agreement. 2.13.2 Owner further agrees that, in the event of any breach of such requirements, potential monetary damages to City, as well as prospective Extremely Low and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and quantify. 2.13.3 Therefore, in addition to any other relief or damages to which the City may be entitled as a consequence of the breach hereof, Owner agrees to the imposition of the remedy of specific performance against it in the case of any event of default by Owner in complying with the allowable rent, occupancy restrictions or any other provision of this Agreement. Nothing herein shall impair City's rights to liquidated damages under Section 6.4 below. 2.14 [INTENTIONALLY OMITTED] 2.15 Reporting Requirements. 2.15.1 From the commencement of construction until the end of the first quarter or the end of the calendar quarter in which construction of the Project was completed, whichever occurs later, Owner shall prepare and submit to the City, on a quarterly basis, written reports, setting forth the rental activity for the previous month, and the current total number of Affordable Units occupied by tenants. 2.15.2 Commencing with the first full calendar quarter after the last period covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a Certificate of Continuing Program Compliance in a form substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or held vacant and available for occupancy by such Tenants during said period; and (b) that to the knowledge of Owner, no default has occurred under the provisions of this Agreement; and (c) such other information as may be requested in writing by the City Manager. 33 254 2.15.3 Owner shall prepare and submit to the City, on an annual basis, a report in form and substance reasonably satisfactory to the City, not later than March 31st of each year for the preceding calendar year, summarizing the vacancy rate of the Affordable Units in the Project on a month-to-month basis for such calendar year. 2.15.4 Owner shall also deliver to City from time to time any other information about the Affordable Units and the rental thereof as may be reasonably requested in writing by City within ten (10) days after any such written request. ARTICLE 3 OPERATIONS 3.1 [INTENTIONALLY OMITTED] 3.2 Management Agent. 3.2.1 The Project shall at all times be managed by the Owner or a single third-party management agent with demonstrated ability to operate, and experience in operating, residential housing including restricted affordable housing, in a manner that will provide decent, safe and sanitary residential facilities to occupants thereof, including experience in complying with reporting requirements and occupancy restrictions similar to those imposed upon the Project by the terms of this Agreement. (There may only be one manager for the entire Project at any one time.) 3.2.2 The Owner, directly or through an affiliate, may be the "manager" of the Project. The Owner may retain on-site personnel and other consultants and service providers to assist Owner to operate the Project effectively and in compliance with the provisions of this Agreement and state and federal law. 3.2.3 In the event that Owner seeks to appoint a replacement management entity to manage the Project, they shall advise the City of the identity of any such qualified management agent not later than thirty (30) days prior to the effective date of such appointment. The Owner shall also submit such additional information about the background, experience and financial condition of any proposed management agent as is reasonably requested by the City. 3.2.4 Upon the City's written request, the Owner shall cooperate with the City in an annual review of the management practices and status of Project. The purpose of each annual review will be to enable the City to determine if the Project is being operated and managed in accordance with the requirements and standards of this Agreement. 3.3 Day-to-Day Management Responsibility. The following procedure shall be followed to ensure effective day-to-day operation of the Project and cooperation among the City, the Owner and the management agent: 3.3.1 Day-to-day operation of the Project will be under the direct supervision of an on-site management agent, or a resident manager who will report to the management agent. 34 255 3.3.2 There will be regular meetings as necessary between the Owner and the management agent for the purpose of reviewing policies, procedures, resident relations and budget control. 3.3.3 Owner shall notify the City in writing of the direct phone number and email address of the management agent (so that City may contact the management agent directly), and shall cause the management agent or its personnel to be available on a twenty-four hour a day basis to respond to City inquiries. 3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing of management personnel to manage the Project in a prudent and businesslike manner. In addition, Owner shall provide such security services as may be necessary or appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal opportunity guidelines, without regard to race, religion, color, national origin or sex. All hiring materials will indicate that the Project is an "Equal Opportunity Employer." Employment grievances, terminations and promotions will be conducted according to personnel policies and procedures which conform with equal opportunity laws. All personnel employed at the Project will receive training specific to Owner's policies and procedures. 3.5 City Ability to Modify. If the Project is not timely completed in accordance with the Schedule of Performance in the Development Agreement, the City may modify the development standards and to change the General Plan designation and zoning of the Property, and Owner hereby waives any rights they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 3.6 Annual Community Services Fee. Upon the issuance of a Zoning Clearance by the City for occupancy of the first unit of the Project, and on each anniversary thereof, Owner shall pay to City a single community services fee of Eight Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual payments under the City Note (as defined in the Development Agreement) .. ARTICLE 4 MAINTENANCE 4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the Project and the Property in good condition and repair and in a prudent and businesslike manner. If any portion of the Project is damaged, restoration of the damaged improvements shall be made by Owner to a condition as good as existed prior to the damage. Owner shall complete promptly and in a good and workmanlike manner any improvements which may now or hereafter be constructed as part of the Project and pay when due all claims for labor performed and material furnished therefor. Owner shall comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions, and orders of any governmental authority now or hereafter affecting the conduct or operation of the Project and of their businesses on the Project or any part thereof or 35 256 requiring any alteration or improvement to be made thereon. Owner shall maintain grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any adjacent areas owned by either of them) in good and neat order and repair. Owner hereby agrees that City may conduct from time to time through representatives of its own choice who are properly identified as agents of the City, upon reasonable written notice and subject to reasonable security and safety procedures and rights of tenants in possession, on-site inspections and observation of such records of Owner relating to the Project and the Property as City reasonably deems to be necessary or appropriate in order to monitor Owner's compliance with the provisions of this Agreement. The Owner shall conduct an ongoing maintenance program, which shall include the following: a. Scheduled preventative maintenance and repair of installed equipment in accordance with manufacturers' recommendations. b. Routine repairs to kitchen appliances, electrical, plumbing and heating equipment. c. Preventative annual apartment inspections to regularly and consistently ascertain the condition of each apartment unit. d. Preventative regular inspections of common areas and equipment as well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the same. This will include maintenance of exterior areas to keep grounds free of graffiti, litter, trash and paper. Parking areas will be maintained in good repair and free from dirt and litter. Common areas such as hallways and laundry rooms will be swept and cleaned regularly and kept free of trash and other debris. Garbage removal will be provided through arrangements with a contractor, consistent with applicable City ordinances. The trash areas will be swept regularly and scrubbed with disinfectant when necessary. Extermination services will be contracted with to provide pest control consistent with high quality apartment management practices. e. Contract with a landscape firm to maintain the landscaped areas in an attractive and healthy condition. f. Interior painting and carpet cleaning or replacement in individual apartment units shall be based on need, substantiated by the annual physical inspection, or as occupancy changes, or as the Owner or the management agent may otherwise deem necessary. g. Owner will employ a maintenance work order procedure in the Project to adequately document requests for work and promptness within which the work has been completed. 4.2 Disclaimer. Nothing in this Agreement shall make City responsible for making or completing capital repairs or replacements to the Project or the Property or require City to expend funds to make or complete the same. 36 257 ARTICLE 5 TERM 5.1 Term of Agreement. This Agreement shall remain in full force and effect for the Term. ARTICLE 6 DEFAULT AND REMEDIES 6.1 An Event of Default. Each of the following shall constitute an "Event of Default" by the Owner hereunder: 6.1.1 Failure by the Owner to duly perform, comply with and observe the conditions of Project approval, conditions, terms, or covenants of the Development Agreement or this Agreement, if such failure remains uncured thirty (30) days after written notice of such failure from the City in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing Owner fails to commence such cure within such thirty (30) day period or thereafter fails to diligently and continuously proceed with such cure to completion. In no event shall the City be precluded from exercising remedies if an Event of Default is not cured within ninety (90) days after the first notice of default is given or such longer period as may be agreed upon by both parties in writing. If a different period or notice requirement is specified under any other section of this Agreement, then the specific provision shall control. 6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen (15) business days after written notice of such default by City. 6.1 .3 Any representation or warranty contained in this Agreement or in any application, financial statement, certificate, or report submitted to the City by Owner proves to have been incorrect in any material respect when made, if such failure remains uncured thirty (30) days after written notice of such failure from City to Owner in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the Owner fails to commence such cure within such thirty (30) day period or thereafter fail to diligently and continuously proceed with such cure to completion. 6.1.4 A court having jurisdiction shall have made or rendered a decree or order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a petition seeking reorganization of Owner or seeking any arrangement on behalf of the Owner under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state or other jurisdiction which is not dismissed within sixty (60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors of the Owner in bankruptcy or insolvency or for any of its properties which (or who) is not discharged within sixty (60) days after its appointment; or (d) directing the winding up or liquidation of the Owner, providing, however, that any such decree or order described in any of the foregoing subsections shall have continued unstayed or undischarged for a period of ninety (90) days. 6.1.5 The Owner shall have assigned its assets for the benefit of its creditors or suffered a sequestration or attachment or execution on any substantial part 37 258 of its property, unless the property so assigned, sequestered, attached, or executed upon shall have been returned or released within ninety (90) days after such event (unless a lesser time period is permitted for cure hereunder) or prior to sale pursuant to such sequestration, attachment, or execution. If the Owner is diligently working to obtain a return or release of the property and the City's interest hereunder is not imminently threatened in the City's reasonable business judgment, then the City shall not declare a default under this subsection. 6.1.6 The Owner shall have voluntarily suspended its business for a period of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed the obligations of Owner in accordance with this Agreement. 6.1.7 Should any default be declared by any lender under any loan document or deed of trust relating to any loan made in connection with the Project or Property, which loan is secured by a deed of trust or other instrument of record, and is not cured within the applicable cure period, if any, granted in the applicable loan documents. 6.2 Liens. 6.2.1 This Agreement shall be senior in priority to any lien or encumbrance on the Property (other than the Development Agreement) and all liens and encumbrances shall be subordinate and subject to this Agreement, regardless of actual date of recordation. The City shall consider in good faith, reasonable modifications of this Agreement typically required by secured lenders and commonly known as "mortgagee protection" provisions; however, in no event shall any such modification shorten the term of this Agreement or contain or require any subordination of provisions of this Agreement. 6.2.2 Owner shall pay and promptly discharge when due, at their cost and expense, all liens, encumbrances and charges upon their respective interests in the Project or the Property, or any part thereof or interest. therein (except the lien of any mortgage, deed of trust or other recorded instrument securing any construction or permanent financing for the Project, which shall, in any event, be junior and subordinate to this Agreement), provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation of this Section if payment is not yet due under the contract which is the foundation thereof and if such contract does not postpone payment for more than forty-five (45) days after the performance thereof. Owner shall have the right to contest in good faith the validity of any such lien, encumbrance or charge, provided that within ten (10) days after service of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall deposit with City a bond or other security reasonably satisfactory to City in such amounts as City shall reasonably require, but no more than the amount required to release the lien under California law and provided further that Owner shall thereafter diligently proceed to cause such lien, encumbrance or charge to be removed and discharged, and shall, in any event, cause such lien, encumbrance or charge to be removed or discharged not later than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and discharge any such lien, encumbrance or charge or to deposit security in accordance with 38 259 the preceding sentence, if applicable, then, in addition to any other right or remedy of City, City may, but shall not be obligated to, discharge the same, without inquiring into the validity of such lien, encumbrance or charge nor into the existence of any defense or offset thereto, either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount or otherwise giving security for such claim, in such manner as is or may be prescribed by law. Owner shall, immediately upon written demand thereof by City, pay to City an amount equal to all costs and expenses incurred by City in connection with the exercise by City of the foregoing right to discharge any such lien, encumbrance or charge. To the extent not paid, all costs and expenses paid by the City shall be a lien on the Property pursuant to Civil Code Section 2881. 6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing, City may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, the non-prevailing party promises to pay to the prevailing party, on demand, the fees and expenses of such attorneys and all other costs of enforcing the obligations secured hereby including without limitation, recording fees, receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred by the prevailing party in connection with the enforcement of this Agreement, whether or not such enforcement includes the filing of a lawsuit. 6.4 Enforcement of this Agreement: Remedies. Upon the occurrence of any Event of Default by Owner, City shall be entitled to enforce performance of any obligation of Owner arising under this Agreement and to exercise all rights and powers under this Agreement or any law now or hereafter in force. Additionally, without limiting any of City's other rights or remedies, upon any leasing of a particular Affordable Unit in violation of this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase by $2 every five (5) years) per day until the violation has been cured (it being understood that if the Affordable Unit is unavailable due to material damage or destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in addition to enforcement costs and any other damages to which City may be entitled, all rent charged by Owner in excess of the rental amounts permitted under this Agreement, with interest thereon from the date paid to Owner until the date paid by Owner to City at the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner stipulates, acknowledges and agrees that the amounts described herein are reasonable estimates of the minimum damages incurred by the City and public as a result of violation(s), and that actual damage would be impractical or impossible to determine with accuracy. No remedy herein conferred upon or reserved to City is intended to be exclusive of any other remedy herein or by law provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute. Every power or remedy given by this Agreement to the City may be exercised, concurrently or independently, from time to time and as often as may be deemed expedient by the City, and the City may pursue inconsistent remedies. The City shall have the right to mandamus or other suit, action or proceeding at law or in equity to require the Owner to perform its obligations and covenants under this Agreement or to enjoin acts or things which may be unlawful or in violation of the provisions hereof. 39 260 ARTICLE 7 GENERAL PROVISIONS 7.1 Notices. All notices, certificates or other communications required or permitted hereunder shall be in writing and shall be delivered by certified mail, postage prepaid, or by reputable overnight messenger service, addressed as follows: If to the City: If to the Owner: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attention: City Manager Essex Moorpark Owner, L.P. 1100 Park Place, Suite 200 San Mateo, CA 94403 Attention: Adam Berry Either party may change its address for notices by a written notice given in accordance with this Section. Notices shall be deemed given on the date of actual delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified mail), or one (1) business day after delivery to the messenger service (if sent by overnight messenger). 7.2 Relationship of Parties. Nothing contained in this Agreement shall be interpreted or understood by any of the parties, or by any third persons, as creating the relationship of employer and employee, principal and agent, limited or general partnership, or joint venture between the City and the Owner, or the City and any agents, employees or contractors of the Owner, and the Owner shall at all times be deemed an independent contractor and shall be wholly responsible for the manner in which it or its agents, or both, perform the services required of it by the terms of this Agreement for the operation of the Project. The Owner have and hereby retains the right to exercise full control of employment, direction, compensation and discharge of all persons assisting in the performance of services hereunder. In regards to the on-site operation of the Project, the Owner shall be solely responsible for all matters relating to payment of its employees, including compliance with Social Security, withholding and all other laws and regulations governing such matters. The Owner each agrees to be solely responsible for its own acts and those of its agents and employees. 7 .3 No Claims. Nothing contained in this Agreement shall create or justify any claim against the City by any person the Owner may have employed or with whom the Owner may have contracted relative to the purchase of materials, supplies or equipment, or the furnishing or the performance of any work or services with respect to the operation of the Project or the Property. 7.4 [INTENTIONALLY OMITTED] 40 261 7 .5 Limitation of Liability. 7.5.1 No member, official, employee, agent or attorney of the City shall be personally liable to the Owner, or any successor in interest, in the event of any default or breach by the City or for any amount which may become from the City or successor or on any City obligation under the terms of this Agreement. No member, official, employee, attorney, partner or consultant of the Owner shall be personally liable to City in the event of any default or breach by Owner or for any amount which may become due to City or its successor, or on any obligations under the terms of this Agreement or Development Agreement. 7.5.2 Notwithstanding any other provision or obligation to the contrary contained in this Agreement, (i) the liability of Owner under this Agreement to any person or entity, including, but not limited to, City and its successors and assigns, is limited to their interests in the Project and the Property, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this Agreement or any other agreement securing the obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement, no deficiency or other personal judgment, nor any order or decree of specific performance (other than pertaining to this Agreement), shall be rendered against Owner, or their assets (other than their interests in the Project, and this Agreement), in any action or proceeding arising out of this Agreement. 7.6 Force Majeure. Whenever a party required to perform an act under this Agreement by a certain time, said time shall be deemed extended so as to take into account events of force majeure. As used herein "force majeure" shall mean a delay in performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, actions of labor unions, third party litigation, condemnation, requisition, governmental restrictions including, without limitation, inability or delay in obtaining government consents or permits, laws or orders of governmental, civil, military or naval authorities, or any other cause, whether similar or dissimilar to the foregoing, not within the party's control, other than lack of or inability to procure monies to fulfill its commitments or obligations under this Agreement. 7.7 Indemnification of City. Except with respect to claims that arise solely from negligence, fraud or willful misconduct by the City or its officers, employees or agents, Owner shall defend, indemnify and hold City harmless from and against any and all claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from, or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii) any negligence or willful misconduct by Owner or any of their employees, agents, contractors, licensees, invitees or tenants on the Project or the Property. 41 262 7 .8 Rights and Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise or failure to exercise one or more of such rights or remedies by either party shall not preclude the exercise by it, at the same time or different times, of any right or remedy for the same default or any other default by the other party. No waiver of any default or breach hereunder shall be implied from any omission to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and such wavier shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contained herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by the City to or of any act by the Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent similar act. The exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of any default under this Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice the City in the exercise of any right, power, or remedy hereunder. 7 .9 Enforcement; Waiver. The City may take whatever action at law or in equity as may be necessary or desirable to enforce performance and observance of any obligation, agreement or covenant of the Owner under this Agreement. No delay or omission to exercise any right or power accruing upon any default shall impair any such right or power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as City may deem expedient. In order to entitle the City to exercise any remedy reserved to it in this Agreement, it shall not be necessary to give any notice, other than such notice as may be herein expressly required or required by law to be given. 7 .10 Severability. If any term, provision, covenant or condition of this Agreement is held in a final disposition by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force and effect unless the rights and obligations of the parties have been materially altered or abridged by such invalidation, voiding or unenforceability. 7.11 Legal Actions. In the event any legal action is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a result of any breach thereof, the party prevailing in any such action shall be entitled to recover against the party not prevailing all reasonable attorneys' fees and costs incurred in such action (including, without limitation, all reasonable legal fees incurred in any appeal or in any action to enforce any resulting judgment). 7.12 Binding Upon Successors; Assignment by City. This Agreement, and the exhibits attached hereto, shall run with the land and be binding upon and inure to the benefit of the successors and assigns of each of the parties, and successors in interest to the Project or any portion thereof or interest therein. Any reference in this Agreement to Owner shall be deemed to apply to any successor or assign or successor-in-interest of such party who has acquired any portion of or interest in the Project. Without limiting the 42 263 foregoing, City may assign this Agreement to the Area Housing Authority of the County of Ventura or any other housing authority created by City or in which City is a member. 7 .13 Binding Effect; Successors and Assigns. Owner covenants and agrees for itself, and its successors and assigns and every successor in interest to any portion of or interest in the Project that it and its successors, assigns and successors in interest shall comply with all of the terms, provisions, easements, conditions, covenants, restrictions, liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the Project and Property "run with the land". 7.14 Transfers. Owner shall provide the City with at least thirty (30) days' prior written notice of any sale or transfer of the Project or the Property or any portion thereof. The Affordable Units shall at all times remain owned by a single entity. Written notice shall be given to the City of any transfer, but no consent of the City shall be required for any transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof, that directly or indirectly, owns and controls, or partially owns but controls the entity to which the transfer will be made, provided that the City is given a copy of the Assignment and Assumption Agreement and organizational documents that prove the entity is such an affiliate of Danco Homes and has such ownership and control. 7 .15 Time of the Essence. In all matters under this Agreement, time is of the essence. 7 .16 Complete Understanding of the Parties. The Project Approvals and this Agreement constitute the entire understanding and agreement of the parties with respect to the matters described herein and therein. 7 .17 Construction and Interpretation of Agreement. The parties hereto acknowledge and agree that this Agreement has been prepared jointly by the parties and has been the subject of arm's length and careful negotiation over a considerable period of time, that each party has reviewed this Agreement with legal counsel, and that each party has the requisite experience and sophistication to understand, interpret and agree to the particular language of the provisions of this Agreement. Accordingly, in the event of an ambiguity in or dispute regarding the interpretation of this Agreement, notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or construed against the party preparing it, and instead other rules of interpretation and construction shall be utilized. 7 .18 Controlling Law: Venue. This Agreement shall be deemed to be entered into in California and shall be controlled and interpreted by the internal laws of California, without regard to conflict of law provisions, except to the extent federal law applies. Venue for any action brought under this Agreement will be in the Superior Court for the County of Ventura, California or in the United States District Court for the Central District of California. Owner hereby accepts for itself and in respect to its property, generally and unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably consents to the service of process in any action or proceeding by the mailing of copies thereof by registered or certified mail, postage prepaid, to Owner at its address for notices 43 264 pursuant to this Agreement. Nothing contained herein shall affect the right of the City to serve process in any other manner permitted by law. 7 .19 Hazardous Materials. 7.19.1 Definitions. The following special definitions shall apply for the purposes of this Section: (a) "Hazardous Materials" shall mean: (1) any "hazardous substance" as defined in Section 101(14) of CERCLA (42 U.S.C. Section 9601 (14)) or Section 25281 (d) or 25316 of the California Health and Safety Code at such time; (2) any "hazardous water," "infectious waste" or "hazardous material" as defined in Section 25117, 25117 .5 or 25501 U) of the California Health and Safety Code at such time; (3) any other waste, substance or material designated or regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C. Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33 U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section 3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or California Water Code (Section 1300 et seq.) at such time; and (4) Any additional wastes, substances or material which at such time are classified, considered or regulated as hazardous or toxic under any other present or future environmental or other similar laws relating to the Project or the Property. (b) "Hazardous Materials Laws" means all federal, state, and local laws, ordinances, regulations, orders and directives pertaining to Hazardous Materials, in, on or under the Project, the Property of any portion thereof. 7.19.2 Certain Hazardous Materials Covenants and Agreements. The Owner hereby agrees that: (a) Neither shall knowingly permit the Project, the Property or any portion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous Materials or otherwise knowingly permit the presence of Hazardous Materials in, on or under the Project or the Property. For the purposes of this Section only, the term "Hazardous Materials" shall not include: (1) construction materials, gardening materials, household products, office supply products, or janitorial supply products customarily used in the construction, ownership, operation, maintenance, or management of residential developments or associated buildings and grounds, or typically used in residential activities, in a manner typical of other residential developments which are comparable to the Project; or (2) certain substances which may 44 265 contain chemicals listed by the State of California pursuant to Health and Safety Code Section 25249.8 et seq., which substances are commonly used by a significant portion of the population living within the region of the Project, including (without limitation) alcoholic beverages, aspirin, tobacco products, and saccharine. (b) Each shall keep and maintain its interest in Project and the Property and each portion thereof in compliance with, and shall not cause or permit its interest in the Project, the Property or any portion thereof to be in violation of, any Hazardous Materials Laws. (c) Upon receiving actual knowledge of the same, the Owner or shall immediately advise the City in writing of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, completed or threatened against the Owner or the Project or the Property pursuant to any applicable Hazardous Materials Laws; (2) any and all claims made or threatened by any third party against the Owner or the Project or the Property relating to damage, contribution, cost recovery, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1) and this clause (2) are hereinafter referred to as "Hazardous Materials Claims"); (3) the presence of any Hazardous Materials in, on or under the Project or the Property; or (4) the Owner's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Project classified as "borderzone property" under the provisions of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Project or the Property under any Hazardous Materials Laws. 7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold harmless and defend (by counsel reasonably approved by the City) the City, and its City Council members, officers, employees, contractors, agents and attorneys from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedings and orders, judgments, remedial action requirements, enforcement actions of any kind, and all costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorneys' fees and expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of (1) the failure of the Owner, as applicable, or any other person or entity occupying or present on their respective interest in the Project or Property, to comply with any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, removal, storage, decontamination, cleanup, transportation or disposal of Hazardous Materials into, on, under or from the Project or the Property; (2) the presence in, on or under its interest in the Project or the Property of any Hazardous Materials or any releases or discharges of any Hazardous Materials into, on, under or from its interest in the Project or the Property; or (3) any activity carried on or undertaken on its interest in the Project or the Property during its ownership thereof, whether by the Owner or any employees, agents, contractors or subcontractors, or any third persons at any time occupying or present on the Project or the Property, in connection with the handling, treatment, 'removal, storage, decontamination, cleanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Project or the Property. The 45 266 foregoing indemnity shall further apply to any residual contamination on or under the Project or the Property, or affecting any natural resources, and to any contamination of any property or natural resources arising in connection with the generation, use, handling, treatment, storage, transport or disposal of any such Hazardous Materials on, under, or from the Project or the Property, and irrespective of whether any of such activities were or will be undertaken in accordance with Hazardous Materials Laws. However, the foregoing indemnity shall not extend to the portion of any Loss arising from the gross negligence, fraud or willful misconduct of the City or anyone for whose actions the City is legally liable. This Section shall survive termination of this Agreement. 7.19.4 No Limitation. Owner hereby acknowledge and agree that their duties, obligations and liabilities under this Agreement are in no way limited or otherwise affected by any information the City may have concerning the Project or the Property and/or the presence within the Project or the Property of any Hazardous Materials, whether the City obtained such information from Owner or from its own investigations. 7.20 Insurance Requirements. 7.20.1 Required Coverage. Owner shall maintain and keep in force, at their sole cost and expense, the following insurance for their respective interests in the Project, provided, however, that a Contractor's liability policy may be used during construction provided it complies with all terms and conditions of this Section: (a) Comprehensive general liability insurance with limits not less than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily injury and property damage, including coverages for contractual liability, personal injury, broad form property damage, products and completed operations. Beginning on the fifth anniversary date of the recordation of this Agreement, and thereafter every five (5) years, the policy limits shall be increased by ten percent (10%) of the then-current limit. (b) Comprehensive automobile liability insurance with limits not less than $2,000,000 for each occurrence, combined single limit for bodily injury and property damage, including coverages for owned, non-owned and hired vehicles. Beginning on the fifth anniversary date of the recordation of this Agreement, and thereafter every five (5) years, the policy limits shall be increased by ten percent (10%) of the then-current limit. (c) Worker's compensation insurance, fidelity bonds and/or such other insurance coverage which is ordinarily and customarily maintained on like kind and sized apartment projects within the City. (d) A policy or policies of insurance against loss or damage to the Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and such other perils ordinarily included in extended coverage casualty insurance policies. In addition, if Owner carries coverage voluntarily for additional causes (such as earthquake, riot, civil commotion or other), such coverage shall be treated in all respects as the policy or policies required to be kept under this paragraph (d) for so long as it continues to 46 267 voluntarily carry such coverage. All insurance hereunder, except earthquake insurance, shall be maintained in an amount not less than one hundred percent (100%) of the Full Insurable Value of the Project as defined below (such value to include amounts spent for construction of the Project, architectural and engineering fees, and inspection and supervision). "Full Insurable Value of the Project" shall mean the actual replacement cost excluding the cost of excavation, foundation and footings below the ground level of the Project. To ascertain the amount of coverage required, Owner shall cause the Full Insurable Value to be determined from time to time, but in no event less often than once each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable to City and Owner; except that no such appraisals shall be required if the policy is written on a "replacement cost" basis. 7.20.2 General Requirements. The insurance required by this Section shall be provided under an occurrence form, and Owner shall maintain such coverage continuously so long as this Agreement is in force. Should any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that claims investigation or legal defense costs be included in such annual aggregate limit, such annual aggregate limit shall be one and one-half times the occurrence limits specified above. All policies shall be with an insurance carrier licensed and admitted to do business in California and rated in Best's Insurance Guide, or any successor thereto (or if there be none, an organization having a national reputation) as having a "Best's Rating" of "A" and a "Financial Size Category" of at least "VII" or if such ratings are not then in effect, the equivalent thereof. 7.20.3 Additional Insured. The City shall be named as an additional insured on the general liability insurance covering the Project and the Property with an endorsement form as approved by the City Manager or his/her designee. Comprehensive general liability policies shall also be endorsed to name as additional insureds the City, and its City Council members, officers, agents and employees. All policies shall be endorsed to provide thirty (30) days prior written notice of cancellation, reduction in coverage, or intent not to renew to the address established for notices to the City pursuant to Section 7.1 of this Agreement. 7.20.4 Certificates of Insurance. Upon the City's request at any time during the Term of this Agreement, Owner shall provide certificates of insurance, in form and with insurers reasonably acceptable to the City, evidencing compliance with the requirements of this Section, and shall provide complete copies of such insurance policies, including a separate endorsement approved by the City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an additional insured. 7.21 Burden and Benefit. City and Owner hereby declare their understanding and intent of the burden of the covenants set forth herein touching and concerning the Project and the Property. 7.22 Amendments. Changes and modifications to this Agreement shall be made only upon the written mutual consent of the Parties. However, no changes shall be made 47 268 to this Agreement which would adversely affect any bonds issued under this Project without the written consent of all appropriate parties with respect to any bond issuance. 7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be enforceable by any person, or firm, or corporation, public or private, except the City and Owner and their respective successors and assigns. 7 .24 Counterparts. This Agreement may be executed in counterparts, which together will be one agreement. 7 .25 Assessment Districts: Covenant and Waivers. Owner agrees to cast affirmative ballots for the increase of any assessment for existing assessment districts for the maintenance of parking and median landscaping, street lighting and parks conferring special benefits, and for the formation of any new assessment district for such purposes, in order to supplement then-existing assessments upon properties within the Project. Owner hereby waives any right they or either of them may have to contest or protest such assessments or any assessment increases. In the event that any such assessment district has insufficient funds for its purposes, then Owner shall pay the funds that the assessment district requires to the assessment district within five (5) business days after written demand from the assessment district from time to time. ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT PROVISIONS The term of the Development Agreement is for seven (7) years, while the term of this Agreement is much longer (as described in the definition of "Term" in Section 1.1 above). The following provisions of the Development Agreement are hereby incorporated herein to clarify that they survive the expiration of the Development Agreement (but, except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier termination of the Development Agreement due to a default by the "Developer" thereunder) and continue until the expiration (or earlier termination) of this Agreement, it being understood that all of the rights and benefits of Owner under the following (except for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall terminate upon any early termination of the Development Agreement due to a default by Owner thereunder. 8.1 No Other Separate Conveyance of Affordable Units. Owner and its successors in interest shall not convey any unit or any portion of the Project separately, but shall only convey them the entire Project concurrently and to the same purchaser, and then only to a purchaser reasonably approved in writing by City (which will consider the reputation and experience of the purchaser in owning and operating affordable rental units). 8.2 Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 48 269 8.2.1 Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and the Development Agreement. 8.2.2 Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and the Development Agreement. 8.2.3 Building Standards. All construction on the Property shall adhere to all City building codes in effect at the time the plan check or permit is approved per Title 15 of the Moorpark Municipal Code and to any federal or state building requirements that are then in effect (collectively "the Building Codes"). 8.2.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and the Development Agreement. 8.3 Densities Allowed for Development. Owner agrees that densities vested and incentives and concessions received in the Project Approvals include all densities available as density bonuses and all incentives and concessions to which Developer is entitled under the Moorpark Municipal Code, Government Code Sections 65915 through 65917 .5 or both Owner shall not be entitled to further density bonuses or incentives or concessions and further agrees that its execution of and compliance with this Agreement is in consideration for the density bonus obtained through the Project Approvals that is greater than would otherwise be available. Residential Planned Development Permit No. 2012-02, including the special conditions that incorporate and include all of the requirements set forth in this Agreement are part of the Project conditions of approval and not merely contractual in nature. 8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first building permit or the approval of any final map for the Project: (a) Owner shall pay the City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b) either two Assessment Districts (one fully funded and a second "back-up" district) or one Assessment District containing two zones (one zone to be fully funded and the other to be a back up zone), as determined by the City at the City's discretion, shall be formed that includes the Property. The first District out of the two Districts or the first zone of the one District, whichever is applicable, shall be for the purposes of funding future costs for the maintenance landscaping and irrigation of the landscaped area above the retaining wall along the southern perimeter of the Property and the maintenance of the storm water quality basin and drainage improvements, including basin landscaping and irrigation. The second District or second zone of the District, whichever is applicable, shall be for the maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water basin access drive and the emergency access drive. It shall be the intent of the City to approve the required assessment each year, but to only levy that portion of the assessment necessary to recover any past City costs or any anticipated City costs for the 49 270 that fiscal year. The City shall administer the annual renewal of the Assessment District or Districts, and any costs related to such administration shall be charged to the fund established for such Assessment District revenues and expenses. Owner agrees to cast affirmative ballots for the establishment of both Assessment Districts, or both zones of the one District, as applicable, and for annual increases in the assessments thereunder, for the purposes specified in this subsection. Owner hereby waives any right they may have to contest or protest any such assessments or assessment increases. In the event that any such Assessment District has insufficient funds for its purposes, then Owner shall pay the funds required to the Assessment District within five (5) business days after written demand from the Assessment District from time to time. Owner also agrees to add this language to any Regulatory Agreement as part of the sale of any bonds issued by the City for the Project. 8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to the Development Agreement, this Agreement and for RPO 2012-02 shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. 8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be designated and reserved for each of the 1-bedroom units, with the remainder of the spaces available for guest parking. At least one of the parking spaces designated and reserved for each of the units shall be in a garage or covered carport. There shall be no extra charges for required parking for any units (whether or not they are Affordable Units). Owner shall only be required to provide ninety-four (94) guest parking spaces. 8.7 City Ability to Modify. Owner acknowledges the City's ability to modify the development standards and to change the General Plan designation and zoning of the Property upon the termination or expiration of the Development Agreement (if the Project has not been built), and Developer hereby waives any rights they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and against any and all claims, liabilities, losses, damages, costs and expenses arising from any activity by Owner or the contractors of either of them, except to the extent caused by the negligence or willful misconduct of the City .. 8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the storm water/flood detention basin located on the City Property and depicted on Exhibit No. 5 (attached as Exhibit No. 5 of Instrument No. 20170417-00050720-0) for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Owner to that effect. 50 271 WHEREFORE, the parties have executed this Agreement as of the date first- above written. 51 CITY: CITY OF MOORPARK By:------------- Print Name: ----------Tit I e: ------------ OWNER: Essex Moorpark Owner, L.P. By:------------- Print Name: ---------- Tit I e: ------------ 272 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Ventura On ____________ , before me,------------~ (insert name and title of the officer) Notary Public, personally appeared __________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _____________ _ (Seal) 52 273 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California County of Ventura On ____________ , before me, ____________ _ (insert name and title of the officer) Notary Public, personally appeared __________________ , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature _____________ _ (Seal) 53 274 EXHIBIT NO. 1 TO AFFORDABLE HOUSING AGREEMENT LEGAL DESCRIPTION THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS: ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document No. 20050721-0178764 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book 5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in said City, County and State as shown on Map filed in Book 5, Page 37 of said Miscellaneous Records (maps). TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No. 200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-0108315 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder, lying northerly of the following described line; BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof; 1st Thence, departing said east line South 89°38'32"West 752.05 feet; 2 nd Thence, South 27°20'34West 36.75 feet; 3 rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel 1A. 54 275 EXHIBIT NO. 2 TO AFFORDABLE HOUSING AGREEMENT TYPE OF UNIT, NUMBER OF UNITS, HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE Low Income 51 % and Above Type of Number of Household Size Unit Units Adjustment 1-br 56 2 persons 2-br 46 3 persons 3-br 36 4 persons Total 138 Very Low Income 31%-50% Type of Number of Household Size Unit Units Adjustment 1-br 16 2 persons 2-br 12 3 persons 3-br 12 4 persons Total 40 Extremely Low Income 30% and Below Type of Unit 1-br 2-br 3-br Total Total Units Number Units of Household Size Adjustment 8 2 persons 6 3 persons 6 4 persons 20 198 Utility Allowance TBD TBD TBD TBD TBD TBD TBD TBD TBD The above Adjustment for Household Size is intended to provide a single rental rate applicable to eligible tenants for each type of unit, and, therefore, is applied regardless of actual household size. The Affordable Housing Owner may not charge additional rent based on a larger actual household size. The units restricted by this Affordable Housing Agreement, and subject to the California Health and Safety Code (and related California Code of Regulations) definitions, rent limits/calculations, and income levels are as follows: 55 276 All Extremely Low Income Units (i.e. 20 units); all Very Low Income Units (i.e. 40 units) and thirty-eight (38) of the Low Income Units (consisting of 18 one- bedroom units; 10 two-bedroom units; and 10 three bedroom units), for a total of 98 units. 56 277 EXHIBIT NO. 3 TO AFFORDABLE HOUSING AGREEMENT FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY New Certification / Recertification Unit Number ----- --------- INCOME COMPUTATION AND CERTIFICATION NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income Re: (NAME and ADDRESS of Apartment Building) To: I/We the undersigned state that I/we have read and answered fully, frankly and personally each of the following questions for all persons who are to occupy the unit being applied for in the above apartment project. Listed below are the names of all persons who intend to reside in the unit: 1. Name of Members Of the Household Income Computation 2. Relationship to Head of Household 3. Age 4. Social Security Number 5. Place of Employment 6. The total anticipated income, calculated in accordance with this paragraph 6, of all persons (except children under 18 years) listed above for the 12-month period beginning the earlier of the date that I/we plan to move into a unit or sign a lease for a unit is$ _________ 1 If this form is being completed in accordance with recertification of an Extremely Low Income Tenant's or Very Low Income Tenant's or a Low Income Tenant's occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a Low Income Unit, respectively, this form must be completed based upon the current income of the occupants. 57 278 Included in the total anticipated income listed above are: (a) the full amount, before any payroll deductions, of wages and salaries, overtime pay, commissions, fees, tips and bonuses and other compensation for personal services; (b) the net income from the operation of a business or profession. Expenditures for business expansion or amortization of capital indebtedness shall not be used as deductions in determining net income. An allowances for depreciation of assets used in a business or profession may be deducted, based on straight line depreciation, as provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from the operation of a business or profession will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested in the operation by the family; (c) interest and dividends and other net income of any kind from real or personal property. Expenditures for amortization of capital indebtedness shall not be used as deductions in determining net income. An allowance for depreciation is permitted only as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an investment will be included in income, except to the extent the withdrawal is reimbursement of cash or assets invested by the family. Where the family has net family assets in excess of $5,000, annual income shall include the greater of the actual income derived from all net family assets or a percentage of the value of such assets based on the current passbook savings rate. (d) the full amount of periodic payments received from Social Security, annuities, insurance policies, retirement funds, pensions, disability or death benefits, and other similar types of periodic receipts, including any lump sum amount except deferred periodic amounts from supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts; (e) payments in lieu of earnings, such as unemployment and disability compensation, workers' compensation and severance pay; (f) welfare assistance. If the welfare assistance payment includes an amount specifically designated for shelter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelter and utilities, the amount of welfare assistance income to be included as income shall consist of: (1) the amount of the allowance or grant exclusive of the amount specifically designated for shelter or utilities; plus (2) the maximum amount that the welfare assistance agency could in fact allow the family for shelter and utilities. If the family's welfare assistance is ratably reduced form the standard of need by applying a percentage, the amount calculated under this paragraph shall be the amount resulting from one application of the percentage; (g) periodic and determinable allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling; 58 279 (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; 59 280 (5) incremental earnings and benefits resulting to any family member from participation in qualifying State or local employment training programs (including training programs not affiliated with a local government) and training of a family member as resident management staff. Amounts excluded by this provision must be received under employment training programs with clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment training program. (i) temporary , nonrecurring or sporadic income (including gifts); U) reparation payments paid by a foreign government pursuant to claims filed under the laws of that government by persons who were persecuted during the Nazi era; (k) earnings in excess of $480 for each full-term student 18 years old or older (excluding the head of household and spouse); (I) adoption assistance payments in excess of $480 per adopted child; and (m) deferred periodic payments of supplemental security income and social security benefits that are received in a lump sum amount or in prospective monthly amounts; (n) amounts received by the family in the form of refunds or rebates under State or local law for property taxes paid on the dwelling unit; (o) amounts paid by a State agency to a family with a member who has a developmental disability and is living at home to offset the cost of services and equipment needed to keep the developmentally disabled family member at home; or (p) amounts specifically excluded by any other Federal statute from consideration as income for purposes of determining eligibility or benefits under a category of assistance programs that includes assistance under any program to which the exclusions set forth in 24 CFR §5.609(c) apply. 7. Do the persons whose income or contributions are included in item 6 above: (a) have savings, stocks, bonds, equity in real property or other form of capital investment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Indian trust land) Yes No; or ---------- (b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale) during the last two years at less than fair market value? Yes No ---------- 60 281 (c) If the answer to (a) or (b) above is yes, does the combined total value of all such assets owned or disposed of by all such persons total more than $5,000? _____ Yes _____ No (d) If the answer to (c) above is yes, state: (1) the combined total value of all such assets: $. ________ _ (2) the amount of income expected to be derived from such assets in the 12- month period beginning on the date of initial occupancy in the unit that you propose to rent: $ _______ , and (3) the amount of such income, if any, that was included in item 6 above: $ ______ _ 8. Are all of the individuals who propose to reside in the unit full-time students*? _____ Yes _____ No *A full-time student is an individual enrolled as a full-time student during each of 5 calendar months during the calendar year in which occupancy of the unit begins at an educational organization which normally maintains a regular faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an individual pursuing a full-time course of institutional or farm training under the supervision of an accredited agent of such an educational organization or of a state or political subdivision thereof. (a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a husband and wife entitled to file a joint federal income tax return? Yes No ---------- 9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner of the rental housing project in which the unit is located (hereinafter the "Owner"), has any family relationship to the Owner; or owns directly or indirectly any interest in the Owner. For purposes of this paragraph, indirect ownership by an individual shall mean ownership by a family member, ownership by a corporation, partnership, estate or trust in proportion to the ownership or beneficial interest in such corporation, partnership, estate or Trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual. 10. This certificate is made with the knowledge that it will be relied upon by the Owner to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein is true, correct and complete and based upon information I/we deem reliable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 61 282 11 . I/We will assist the Owner in obtaining any information or documents required to verify the statements made herein, including either an income verification from my/our present employer(s) or copies of federal tax returns for the immediately preceding calendar year. 12. I/We acknowledge that I/we have been advised that the making of any misrepresentation or misstatement in this declaration will constitute a material breach of my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent or terminate my/our occupancy of the unit by institution of an action for ejection or other appropriate proceedings. I/We declare under penalty of perjury that the foregoing is true and correct. Executed this ____ day of _________ , 20 ____ (year) in the City of Moorpark, California Applicant Applicant Applicant Applicant [Signature of all persons (except children under the age of 18 years) listed in number 2 above required] 62 283 FOR COMPLETION BY OWNER ONLY: 1. Calculation of eligible income: a. Enter amount entered for entire household in 6 above: $ ----- b. (1) If the amount entered in 7(c)above is yes, enter the total amount entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ _____ ); (2) Multiply the amount entered in 7(d)(1) times the current passbook savings rate as determined by HUD to determine what the total annual earnings on the amount in 7(d)(1) would be if invested in passbook savings ($ ------~· subtract from that figure the amount entered in 7(d)(3) and enter the remaining balance ($ ____ ); (3) above:$ Enter at right the greater of the amount calculated under (1) or (2) ------------ c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $ _______ _ 2. The amount entered in 1.c: _______ Qualifies the applicant(s) as a Very-Low Income Tenant(s). _______ Qualifies the applicant(s) as an Extremely Low Income Tenant(s). 3. Number of apartment unit assigned: ____ Bedroom size: ____ _ Rent:$ ------ 4. This apartment unit (was/was not) last occupied for a period of 31 or more consecutive days by persons whose aggregate anticipated annual income as certified in the above manner upon their initial occupancy of the apartment unit qualified them as a Lower-Income Tenant(s). 5. Method used to verify applicant(s) income: Employer income verification. Copies of tax returns. _______ Other( ________________ ) 6. Is occupant a City of Moorpark resident on the waiting list who was given priority? Yes:___ No: __ _ Manager Date 63 284 ( INCOME CALCULATION WORKSHEET Include all household income for all persons over 18 years of age. Written verification of all income must be included. Gross Net 1099 Public Social Pension Unemploy Military Alimony Family Applicant Wages Income Income Assistance Security ment Pay and/or Supp. & Salaries* from 1040 disability or Child (regular gift (YTD as of: (self workers Support from ) employed) compensat person not ion pay living in unit) 1 2 3 4 OM 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* Stocks Other** $ _________ _ $ _________ _ $ _________ _ DID TOTAL ASSET INCOME Savings Bonds ]$ $ _________ _ $ _________ _ *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. I TOTAL HOUSEHOLD INCOME (A+ B) I $ 64 285 INCOME VERIFICATION (FOR EMPLOYED PERSONS) The undersigned employee has applied for a rental unit located in a project financed under the Multifamily Revenue Bond Program for persons of low and very low income. Every income statement of a prospective tenant must be stringently verified. Please indicate below the employee's current annual income from wages, overtime, bonuses, commissions or any other form of compensation received on a regular basis. EMPLOYER Annual Wages Overtime Bonuses Commissions Current Base Pay (Gross) Other Income Avg. Total Hours Worked Weekly Total Current Income -------- Year-to-Date Income -------- I Pay Period: [] Weekly I [ ] Bi-weekly I [ ] Monthly I [ ] Other Do you anticipate an increase in the base pay over the next 12 months? □ Yes □ No If so, please indicate the amount of anticipated increase$ _____ per ____ start date: ---- NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the purpose of determining income status. This form does not constitute a promise by the employer to the employee of guaranteed wages, bonuses or raises. I hereby certify that the statements above are true and complete to the best of my knowledge. Date Employer Signature Title Employer's Address Employer's Phone Number 65 286 APPLICANT hereby grant you perm1ss1on to disclose my income to _______________ in order that they may determine my income eligibility for rental of an apartment located in their project which has been financed under the Multifamily Revenue Bond Program. Date Print Name (Resident) Please send to: (Management Co. or Owner) Signature (Resident) 66 287 INCOME VERIFICATION (for self-employed persons) hereby attach copies of my individual federal and state income tax returns for the immediately preceding calendar year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge. Signature Date 67 288 INCOME VERIFICATION (for Social Security recipients) TO: SOCIAL SECURITY ADMINISTRATION Ladies and Gentlemen: I have applied for a rental unit located in a project financed under the _____________ Multifamily Housing Program for persons of very low income: Every income statement of a prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby authorize the Department of Social Services to release to __________________ the specific information requested below: Date: ----------------------------- Signature: __________________________ _ Social Security No.: _________ _ Name (Print): ____________ _ Address(Print) ________________________ _ Monthly Benefits Began/Will Begin: Social Security Benefit Amount: $ ______________________ _ Other Benefit(s): ________ _ Amount:$ ----------- Medicare Deductions: $ ----------- Are benefits expected to change? [ ] Yes [ ] No If yes, please state date and amount: Date: of change ---------- Amount$ --------- 68 289 If recipient is not receiving full benefit amount; please indicate reason and date recipient will start receiving full benefit amount: Reason: Date of Resumption: Amount: ---------------- Date: Signature: Title: Please send form to: 69 290 INCOME VERIFICATION (for Department Social Services recipients) TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES Ladies and Gentlemen: I am receiving assistance through your office. I have applied for a rental unit located in project financed under the ______________ Multifamily Housing Program for persons of very low income. Every income statement of a prospective tenant must be stringently verified. In connection with my application for a rental unit, I hereby authorize the Department of Social Services to release to _____________ the specific information requested below: Date: ---------------------------- Signature: __________________________ _ Caseload Number: ---------- Name (Print): __________ _ Case Number: Case Worker: ----------- 1. Number of persons included in budget: __________ _ 2. Total monthly budget$ _______________ _ (a) Amount of grant$ _______ _ (b) Date aid last began: ________ _ (c)Other income and source: _________________ _ (d) Is other income included in total budget? □ Yes □ No 3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal, Etc.): ____ _ 4. If recipient is not receiving full grant, please indicate reason: [ ] Overpayment due to client's failure to report other income [ ] Computation error [ Other: -------------------------- 70 291 Date when full grant will resume: ___________________ _ Date: -------------- Case Worker's Signature: _________ _ Telephone: ___________ _ District Office: -------------- Your very early response will be appreciated. Please return form to: 71 292 DECLARATION OF NO INCOME As managing agents for (Name of Development) assisted by the Low Income Housing Program, we are required to verify all income. To comply with this requirement, we ask your cooperation in supplying the information requested in the Certification below. This information will be held in strict confidence and used only for the purpose of establishing eligibility. CERTIFICATION Name of Management Company By: Name and Title I, _____________ , do hereby certify that I do NOT receive income from ANY source. I understand sources of income include, but are not limited to the following: Employment Study Pensions Unemployment Self Employment General Assistance Compensation AFDC Disability Social Security SSI Union Benefits Workers Compensation Retirement Funds Family Support Child Support Alimony Annuities Education Grants/Work Income from Assets I understand that should I become gainfully employed or begin receiving income from any source, I must report the information to the manager immediately. I certify that the foregoing information is true, complete and correct. Inquiries may be made to verify statements herein. I also understand that false statements or omissions are grounds for disqualification and/or prosecution under the full extent of California law. Signature Date Witness Signature Date 72 293 Support Verification Source's Mailing Address: --------- Phone#: ---------- Fax#: ------------ Recipient: Federal law requires that we verify the annual income of all persons applying for admissions to or living in a community that offers affordable housing. This community operates under the guidelines of Section 42 of the Internal Revenue Code. To comply with these requirements, we ask your cooperation in supplying the information requested below regarding the above referenced individuals. This information will be used only for determination of eligibility and/or rent computation. You will notice a release of information is authorized by the applicant/tenant's signature below. Your assistance in completing this form accurately and timely is greatly appreciated! Applicant/Tenant Release Statement Applicant/Tenant Name: I hereby authorize the release of the following information in order to determine my eligibility for the Bond Program. Please complete the form in full and return it to the MANAGEMENT COMPANY at your earliest convenience. Signature: _________________ _ Social Security #: ______ _ 73 294 Please complete the following. If the monies are based on a percentage of the payer's income, please indicate the average amount per period. Tvoe of Benefit Amount Freauencv [ ] Child Support ( ) weekly ( ) monthly ( yearly [ ] Family Support ( ) weekly ( ) monthly ( yearly [ ] Alimony ( ) weekly ( ) monthly ( yearly [ ] Other ( ) weekly ( ) monthly ( -yearly (Please list type) Are monies paid to offset an AFDC grant? [ ] Yes [ No Do you anticipate any changes in the next 12 months? ] Yes [ ] No Comments: _________________________ _ Signature SSN#: of --------- Source: -------------- Date Completed Form: ____________ _ 74 ) ) ) ) 295 EXHIBIT NO. 4 TO AFFORDABLE HOUSING AGREEMENT CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE FOR THE [MONTH/QUARTER] ENDING __ _ The undersigned, ____________ , as the authorized representative of ___________ (the "Owner"), has read and is thoroughly familiar with the provisions of the Affordable Housing Agreement by and between Danco Communites ("Developer") and the City of the City of Moorpark (the "City"), dated as of ________ , 20_. As of the date of this Certificate, the following numbers of completed residential Units in the Project (i) are occupied, or (ii) are currently vacant and being held available for such occupancy and have been so held continuously since the date an Extremely Low Income Tenant or Very Low Income Tenant vacated such Unit, as indicated: Occupied by Extremely Low Income Tenants: Number of Units: ------------ Occupied by Very Low Income Tenants: Number of Units: ------------- Occupied by Low Income Tenants: Number of Units: ------------- Held vacant for occupancy continuously since last occupied by Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants. Vacant Units Number: --------- Occupied Units Number: ·---------- Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants who commenced occupancy of Units during the preceding [month/quarter]: Extremely Low Income: Units Nos.: _______________________ _ 75 296 Very Low Income: Units Nos.: ------------------------- Low Income: Units Nos.: ------------------------- Attached is a separate sheet (the "Bond Program Report") listing, among other items, the following information for each apartment Unit in the Project: the number of each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and number of bedrooms of each Unit. It also indicates which Units are occupied by Extremely Low Income Tenants, Low Income Tenants and Very Low Income Tenants and which Units became Extremely Low Income Units, Low Income Units and Very Low Income Units during the preceding [month/quarter]. The information contained thereon is true and accurate. The undersigned hereby certifies that (1) a review of the activities of the Owner during such [month/quarter] and of Owner's performance under the Affordable Housing Agreement among Owner and the City, has been made under the supervision of the undersigned; and (2) to the best of the knowledge of the undersigned, based on the review described in clause (1) hereof, the Owner is not in default under any of the terms and provisions of the above documents [or describe the nature of any default in detail and set forth the measures being taken to remedy such default: __________ _ ___________________ .] 76 297 EXHIBIT E FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST (UNDER SEPARATE PAGE) 77 298 $3,890,500.00 PROMISSORY NOTE (City Loan) -----, 2021 FOR VALUE RECEIVED, Moorpark Casey Road LP, a California limited partnership (the "Borrower"), hereby promises to pay to the order of the City of Moorpark, a California municipal corporation (the "Lender" or ("City"), whose address is 799 Moorpark A venue, Moorpark, California 93021, the principal amount of Three Million Eight Hundred Ninety-Thousand Five Hundred Dollars and 00/100 ($3,890,500). 1. The Loan. This Promissory Note (the "Note") evidences the obligation of the Borrower to the Lender for the repayment of funds loaned to the Borrower for the payment of certain City development fees (the "Loan") in the connection with the development of a 200-unit low-income apartment complex to be located in the City of Moorpark (the "Project"). 2. Interest. Simple interest shall accrue on the outstanding principal balance of this Promissory Note ("Note") from the date of this Note at a rate equal to 3% per annum until the Maturity Date (as defined below). Interest shall be calculated based on a 365 day year, upon actual days elapsed. 3. Maturity Date. The principal amount of this Note along with all accrued and unpaid interest and/or other amounts due shall be due and payable on the fifty-fifth (55) anniversary of the date of issuance of certificates of occupancy for the Project (the "Maturity Date"); provided, however, that the Maturity Date may be accelerated in accordance with the terms and provisions of this Note. 4. Payments. Beginning in the year following the year in which the Project receives its certificate of occupancy, annual payments of interest and principal hereunder for each year shall be made on or before June 1 of the following year only to the extent of 50% may be reduced and shared pro rata with other soft lenders in the sole and absolute discretion of the City Manager of available Residual Recepits (as defined below). On or prior to the date that the Borrower pays its annual payment, Borrower shall submit the following to the City: (1) A statement of Residual Receipts for the relevant period, for the Project and the status of all reserve funds, including without limitation; (2) A statement from the independent public accountant that audited the Borrower's financial records for the relevant period, which statement must confirm that Borrower's calculation of the City's share of Residual Receipts is accurate based on Gross Revenue (as defined below) and Annual Operating Expenses (as defined below); and (3) Any additional documentation reasonably required by the City to substantiate Borrower's calculation of City's share of Residual Receipts. All payments received by Lender shall be applied first to accrued interest then to the unpaid principal balance. For the purposes of this Note, the term "Residual Receipts" in a particular calendar year shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses. 78 299 "Gross Revenue" means for each calendar year, all revenue, income, receipts, and other consideration actually received by the borrower from operation and leasing of the Project. Gross Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants, payments or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all cancellation fees, price index adjustments and any other rental adjustments to leases or rental agreements resulting in actual income to Borrower; (2) The proceeds of business interruption or similar insurance; (3) Any payment received in consideration for the leasing or other use of any portion of the project; ( 4) Subject to the rights of senior lenders, the proceeds of casualty insurance to the extent not utilized to repair or rebuild the project ( or applied toward the cost of recovering such proceeds); (5) Subject to the rights of senior lenders, condemnation awards for a taking of part or all of the project for a temporary period; and (6) Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital contributions or other similar advances. "Annual Operating Expenses" with respect to a particular calendar year means the following costs reasonably and actually incurred for operation and maintenance of the project to the extent that they are consistent with an annual independent audit performed by a certified public accountant using generally accepted accounting principles: (1) Property taxes and assessments imposed on the property; (2) Debt service and associated fees currently due on a non-optional basis (excluding debt service due from residual receipts or surplus cash of the project) on loans associated with development of the project and approved by the City in the approved financing plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements which are standard in the industry, and pursuant to a management contract approved by the City; (4) Premiums for property damage and liability insurance; (5) Any annual license or certificate of occupancy fees required for operation of the project; (6) Annual regulatory compliance monitoring fees payable to the City; (7) Security services; (8) Advertising and marketing costs; (9) Cash deposited into reserves for capital replacements of the project in an amount to be approved by the City as part of the approved financing plan; ( 10) Partnership management fees in the amount approved by the City as part of the approved financing plan; ( 11) Utility services not paid for directly by tenants, including without limitation, water, sewer, and trash collection; (12) Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and decorating, cleaning, common systems repair,janitorial supplies and services; (13) Social services fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in relation to any approved financing; ( 15) Extraordinary operating costs specifically approved by the City in its reasonable discretion; (16) Payments of deductibles in connection with casualty insurance claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired or restored, and not normally paid from reserves; ( 17) Reasonable accounting fees and legal fees; (18) Payments of Deferred Developer Fee; and (19) Other ordinary and reasonable operating expenses approved by the City in its reasonable discretion and not listed above. Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or other non-cash expenses or, any amount expended from a reserve account. 5. Prepayment. The principal and interest of this Note may be voluntarily prepaid at any time, in its entirety or in any partial amount, without premium or penalty. 6. Security. Payment of the indebtedness evidenced by this Note is secured by that certain Subordinated Deed of Trust, Fixture Filing, and Assignment of Rents (City Loan) (the 79 300 "Deed of Trust"), of even date herewith, and made by Borrower, as trustor, to Commonwealth Land Title Insurance Company, as trustee, for the benefit of Lender, as beneficiary, which encumbers real property in the County of Ventura, State of California, as more particularly described in Exhibit A to the Deed of Trust, together with the improvements to be located thereon. 7. Events of Default. The occurrence of any of the following, whatever the reason therefor, shall constitute an "Event of Default" hereunder: a. Borrower fails to make any payment of principal or interest hereunder when due; or b. Borrower fails to pay any other amount owing to Lender under this Note, or fails to perform any other obligation under this Note; or c. Borrower is dissolved, liquidated or terminated, or all or substantially all of the assets of Borrower are sold or otherwise transferred without Lender's prior written consent; or d. Borrower is the subject of an order for relief by a bankruptcy court, or is unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; or Borrower applies for or consents to the appointment of any rehabilitator or similar officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of Borrower and the appointment continues undischarged or unstayed for 90 days; or Borrower institutes or consents to any bankruptcy, insolvency, reorganization, arrangement, readjustment or debt, dissolution, custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or any part of its property; or any similar proceeding is instituted without the consent of Borrower, as the case may be, and continues undismissed or unstayed for 90 days; or any judgment, writ, warrant or attachment or execution, or similar process is issued or levied against any property of Borrower and is not released, vacated or fully bonded within 90 days after its issue or levy; or e. An event of default by Borrower has occurred and is continuimg past applicable notice and cure periods under that certain Amended and Restated Affordable Housing Agreement to be entered into between Lender and Borrower and recorded in the Official Records of Ventura County concurrently herewith. Lender agrees any cure of any Event of Default or default made by the investor limited partner of Borrower shall be deemed to be a cure by Borrower and shall be accepted or rejected on the same basis as if made by Borrower. 8. Acceleration and Other Remedies. If the Lender believes, in it sole judgment, that an Event of Default has occurred and such Event of Default is not cured within sixty (60) days after written notice to Borrower and the investor limited partner of Borrower, the Lender, at its option, within sixty (60) days thereafter, may declare the outstanding principal and interest to be immediately due and payable. Notwithstanding the foregoing, the cure periods hereunder shall not apply to the final payment due hereunder on the Maturity Date or to any acceleration of the Loan. 80 301 9. Subordination; No Acceleration Upon Transfer or Refinancing. a. Lender shall execute commercially reasonable subordination agreements as requested by the Borrower's senior lender(s) to subordinate this Note and the Deed of Trust to the Borrower's senior bond financing encumbering the Project property. b . The Bo1TOwer shall be permitted to refinance its senior bond financing and the Lender shall also subordinate this Note and the Deed of Trust to any refinancing of such senior bond financing so long as the amount to be subordinated does not exceed the original principal balance of such loan plus reasonable closing costs. In such event, subordination of the Loan to such refinancing shall be subject to the Lender's sole discretion. 10. Non-Recourse. Anything contained in any provision of the Deed of Trust or this Note notwithstanding, the Loan shall be a nonrecourse obligation of Borrower and its partners except in the event of fraud or a material misrepresentation of fact by Borrower. 11. Application of Payments. All payments made hereunder shall be applied first to interest due and then in reduction of the principal balance. 12. Waivers. Borrower hereby waives presentment, demand, protest, notice of dishonor, notice of protest and all other notices and demands of every kind that would otherwise be available in connection with this Note. 13. Notice. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given (i) one business day after being deposited with Federal Express or another reliable overnight courier service for next day delivery, (ii) upon electronic mail transmission (except that if the date of such transmission is not a business day, then such notice shall be deemed to be given on the first business day following such transmission), or (iii) two business days after being deposited in the United States mail , registered or certified mail, postage prepaid, return receipt required, and addressed as follows: If to Borrower: With a copy to: With a copy to : With a copy to: Danco Communities 5251 Ericson Way Arcata , CA 95521 Attention: Chris Dart ( cdart@ danco-group .com) Odu & Associates , PC 31805 Temecula Parkway #720 Temecula, CA 92592 Attention: Nkechi C. Odu, Esq. (nkechi @ odulaw.com) [EQUITY INVESTOR] [EQUITY INVESTOR COUNSEL] 81 302 If to Lender: With a copy to: City of Moorpark 799 Moorpark A venue Moorpark, California 93021 Attention: Troy Brown, City Manager ( CityManager@moorparkca.gov) Addresses for notice may be changed from time to time by written notice to the other party. 15. Miscellaneous. Time is of the essence hereof. All payments hereunder shall be made in lawful money of the United States of America. This Note shall be governed by the laws of the State of California. [SIGNATURE ON FOLLOWING PAGE] 82 303 IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as of the date first above written. "BORROWER" By: Johnson & Johnson Investments, LLC, a California limited liability company Its Co-Administrative General Partner By: __________ _ Daniel J. Johnson, Member By: Community Revitalization and Development Corporation Its Managing General Partner By: ------------- David Rutledge, President 83 304 RECORDING REQUESTED BY Commonwealth Land Title Insurance Company AND WHEN RECORDED MAIL TO: City of Moorpark 799 Moorpark A venue Moorpark, California 93021 Attention: City Clerk (Space Above This Line For Recorder's Use) SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT OF RENTS THIS SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT OF RENTS ("Subordinated Deed of Trust") is made on this _day of _____ 2022, by Moorpark Casey Road LP, a California limited partnership, as trustor ("Borrower") to Commonwealth Land Title Insurance Company ("Trustee"), for the benefit of CITY OF MOO RP ARK, a California municipal corporation ("Lender"). The Borrower, in consideration of the indebtedness recited and the trust created in this Subordinated Deed of Trust, irrevocably grants and conveys to Trustee, in trust, with power of sale all of its right title and interest in and to that certain real property located in the City of Moorpark, County of Ventura, State of California, legally described in "Exhibit A" attached hereto and made a part hereof. Together with all of the improvements now or hereafter erected on said property, and all easements, rights, appurtenances, rents (subject, however, to the rights and authorities given in this Subordinated Deed of Trust to the Lender to collect and apply such rents), royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to said property, all of which including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Subordinated Deed of Trust; and all of the foregoing, together with said property are referred to in this Subordinated Deed of Trust as the "Property"; This Deed of Trust constitutes a financing statement filed as a fixture filing under Article 9 of the California Uniform Commercial Code, as amended or recodified from time to time, covering any property which now is or later may become fixtures attached to the Property. For this purpose, Borrower is debtor and Lender is secured party. 84 305 To secure for the benefit of Lender the repayment of the indebtedness evidenced by the Borrower's promissory note dated ______ 2022 (the "Note") in the principal sum of $3,890,500.00 and the performance of the covenants and agreements of the Borrower contained in this Subordinated Deed of Trust, the Note, and that certain Amended and Restated Affordable Housing Agreement to be entered into between Lender and Borrower and recorded in the Official Records of Ventura County concurrently herewith. Borrower covenants and agrees as follows: PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall pay when due the interest and the principal of the indebtedness evidenced by the Note from the sources and pursuant to the terms of the Note. COMPLIANCE WITH SENIOR DEED OF TRUST. Borrower covenants and agrees to comply with the terms and conditions of any senior deeds of trust recorded against the Property ( collectively, the "Senior Encumbrances"). CHARGES AND LIENS. Borrower shall pay all taxes, assessments and other charges, fines and impositions attributable to the Property which may attain a priority over this Subordinated Deed of Trust. Borrower shall promptly pay when due all installments or payments required by Lender and comply with all obligations of any deed of trust that is prior to this Subordinated Deed of Trust. INSURANCE PROCEEDS. Any insurance proceeds received as a result of damage to the Property from fire or other calamity shall be first expended as required by any Senior Encumbrances. PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants and agreements contained in this Subordinated Deed of Trust, or if any action or proceeding is commenced which materially affects the Lender's interest in the Property, including, but not limited to, default on or foreclosure of a prior deed of trust, eminent domain, insolvency, code enforcement, or arrangement or proceedings involving a bankrupt or decedent, then the Lender at Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums and take such action as is necessary to protect the Lender's interest including, but not limited to, disbursement of reasonable attorney's fees and entry upon the Property to make repairs, but shall have no right of reimbursement. INSPECTION. Lender may make or cause to be made reasonable entries upon and inspections of the Property, provided that the Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to the Lender's interest in the Property. CONDEMNATION. Subject to the rights of the holder of a prior deed of trust, the proceeds of any award or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be treated as if received from a sale of the Property. The proceeds shall be applied to the sums to be repaid in 85 306 the amount and manner described in the Senior Encumbrances and the documents evidencing the indebtedness secured thereby. Any part of the proceeds remaining after these amounts have been paid shall be paid to the Borrower. In the event of a partial taking of the Property, unless Borrower and Lender agree in writing, the proceeds shall be treated as if received from a sale of that portion of the Property which is taken in the condemnation. The percentage value of the portion taken, as compared to the full value of the entire Property, shall be determined by dividing the condemnation proceeds by the fair market value of the entire Property just prior to the taking. This percentage value, once determined, shall be used in the following manner to allocate the condemnation proceeds: a. First, to the payment of any amount owing under the Senior Encumbrances and the documents evidencing the indebtedness secured thereby; b. Second, to payment of the Note; c. Third, to the Borrower. BORROWER NOT RELEASED. Extension of the time for payment or modification of amortization of the sums secured by this Subordinated Deed of Trust granted by the Lender to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower and Borrower's successors in interest. Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or modification of amortization of the sums secured by this Subordinated Deed of Trust by reason of any demand made by the original Borrower and Borrower's successors in interest. FORBEARANCE BY LENDER NOT AW AIYER. Any forbearance by the Lender in exercising any right or remedy hereunder, otherwise afforded by applicable law, shall not be a waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to accelerate the maturity of the indebtedness secured by this Subordinated Deed of Trust. REMEDIES CUMULATIVE. All remedies provided in this Subordinated Deed of Trust are distinct and cumulative to any other right or remedy under this Subordinated Deed of Trust or afforded by law or equity, and may be exercised concurrently, independently or successively. SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY; CAPTIONS. The covenants and agreements contained in this Subordinated Deed of Trust shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of Section 16 hereof. All covenants and agreements of Borrower shall be joint and several. The captions and headings of the Sections of this Subordinated Deed of Trust are for convenience only and are not to be used to interpret or define the provisions hereof. NOTICE. Except for any notice required under applicable law to be given in another manner, any notice to Borrower or Lender provided for in this Subordinated Deed of Trust shall be given at the addresses provided in the Note. 86 307 GOVERNING LAW; SEVERABILITY. This Subordinated Deed of Trust shall be governed by the laws of the State of California. In the event that any provision or clause of this Subordinated Deed of Trust or the Note as incorporated herein conflicts with applicable law, such conflict shall not affect other provisions of this Subordinated Deed of Trust or the Note which can be given effect without the conflicting provision, and to this end the provisions of the Subordinated Deed of Trust and Note are declared to be severable. TRANSFER OF THE PROPERTY. If all or any of the Property is sold or transferred by Borrower, excluding permitted transfers pursuant to this Subordinated Deed of Trust or the Note, all the sums secured by this Subordinated Deed of Trust shall be immediately due and payable. In the event of such an acceleration, Lender shall mail Borrower notice of the acceleration in accordance with Section 12 hereof. Such notice shall provide a period of not less than 60 days from the date the notice is mailed within which the Borrower may pay the sums declared due. If the Borrower fails to pay such sums prior to the expiration of such period, Lender may, without further notice or demand on Borrower, invoke any remedies permitted by Section 16 hereof. ACCELERATION; REMEDIES Except as provided in Section 15 hereof, upon Borrower's breach of any covenant or agreement of Borrower in this Subordinated Deed of Trust or the Note as incorporated by reference in this Subordinated Deed of Trust, including the covenants to pay, when due, any sums secured by this Subordinated Deed of Trust, Lender, prior to acceleration, shall mail notice to Borrower as provide in Section 12 hereof specifying: (a) the breach; (b) the action required to cure such breach; ( c) a date by which such breach must be cured; and ( d) that failure to cure such breach on or before the date specified in the notice may result in acceleration of the sums secured by this Subordinated Deed of Trust and sale of the Property. If the breach is not cured on or before the date specified in the notice, the Lender, at its option, may seek remedies in the manner provided in the Note. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Section 16, including, but not limited to, reasonable attorneys' fees. Subject to the terms and conditions provided herein, if Lender invokes the power of sale, Lender shall have appraised, or shall cause Trustee to have appraised, the Property to determine its fair market value. The Lender shall also execute or cause Trustee to execute a written notice of the occurrence of an event of default and of Lender's election to cause Property to be sold, and shall cause such notice to be recorded in each county in which the Property or some part thereof is located. Lender or Trustee shall mail copies of such notice in a manner prescribed by applicable law. After the lapse of such time as may be required by applicable law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale. Lender or Lender's designee may purchase the Property at any sale. Trustee shall deliver to the purchaser Trustee's deed conveying the Property so sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed shall be prime facie evidence of the truth of the statements made therein. Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee and attorneys' fees and costs of title evidence; 87 308 (b) to all sums secured by the lien of some other or later security instrument, as evidenced by a Note, by and between the Borrower and Borrower's lender, that is either prior in lien priority to the priority of this Subordinated Deed of Trust or to which the Lender has subordinated its lien rights and, thereby, placed itself in a subordinated position, ( c) to all sums secured by this Subordinated Deed of Trust, as evidenced by the Note; and ( d) the excess, if any, to the person or persons legally entitled thereto. BORROWER'S RIGHT TO REINSTATE. Notwithstanding Lender's acceleration of the sums secured by this Subordinated Deed of Trust, Borrower shall have the right to have any proceedings begun by Lender to enforce covenants of this Subordinated Deed of Trust relating to sums due and payable by Borrower discontinued at any time prior to five days before the Property is scheduled for sale pursuant to the power of sale contained in this Subordinated Deed of Trust or at any time prior to entry of a judgment enforcing this Subordinated Deed of Trust if: (a) Borrower pays Lender all sums which would be then due under this Subordinated Deed of Trust, the Note and notes securing Future Advances, if any, had no acceleration occmTed; (b) Borrower pays all reasonable expenses incurred by Lender and Trustee in enforcing the covenants and agreements of Borrower contained in this Subordinated Deed of Trust and in enforcing Lender's and Trustee's remedies as provided in Section 16 hereof, including, but not limited to reasonable attorneys' fees; (c) Borrower takes such actions as Lender may reasonably require to assure that the lien of this Subordinated Deed of Trust, Lender's interest in the Property, and Borrower's obligation to pay the sums secured by this Subordinated Deed of Trust shall continue unimpaired. Upon such payment and cure by Borrower, this Subordinated Deed of Trust and the obligations secured hereby shall remain in full force and effect as if no acceleration had occurred. ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN POSSESSION. As additional security hereunder, subject to the rights of senior lien holders, Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior to acceleration under Section 15 hereof, have the right to collect such rents as they become due. Upon acceleration under Section 15 hereof or abandonment of the Property, Lender, in person, by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of, rent and manage the Property and to collect the rents of the Property. All rents collected by the Lender or by a judicially appointed receiver shall be applied first to payment of the cost of management of the Property and collection of rents, including, but not limited to, receiver's fees, premiums on receiver's bonds and reasonable attorneys' fees, and then to the sums secured by this Subordinated Deed of Trust. Lender and the receiver shall be liable to account for those rents actually received and expenditures actually incurred. RECONVEY ANCE. Upon payment of all sums evidenced by the Note and secured by this Subordinated Deed of Trust, Trustee shall reconvey the Property without warranty and without charge to the person or persons legally entitled thereto. Such person or persons shall pay all costs ofrecordation, if any. SUBSTITUTE TRUSTEE. Lender, at Lender's option, may from time to time remove Trustee and appoint a successor trustee to act as Trustee under this Subordinated Deed of Trust. Without conveyance of the Property, the successor trustee shall succeed to all the title, power and duties conferred upon the Trustee in this Subordinated Deed of Trust and by applicable law. 88 309 REQUEST FOR NOTICES. Borrower requests that copies of the notice of default and notice of sale be sent to the Borrower's address. ST A TEMENT OF OBLIGATION. The Lender may collect a fee not to exceed $15 .00 for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of the State of California. SUBORDINATION ACKNOWLEDGMENT. Beneficiary hereby acknowledges that the loan secured by this Subordinated Deed of Trust is also subordinate to the extended use agreement required to be executed by Borrower pursuant to Section 42(h)(6)(B) of the Internal Revenue Code, for purposes of the low-income housing tax credits to be allocated to Borrower. In addition, Beneficiary hereby acknowledges that the loan secured by this Subordinated Deed of Trust is further subordinate to Section 42(h)(6)(e)(ii) of the Internal Revenue Code, which prohibits the eviction or termination of a tenancy, other than for good cause, of an existing tenant of any low-income housing tax credit unit or any increase in the gross rent with respect to such unit, not otherwise permitted under Section 42, for a period of three (3) years after the date the Property is acquired by Lender through foreclosure or instrument in lieu of foreclosure. FINANCING STATEMENT. This Deed of Trust shall constitute a financing statement pursuant to California UCC §9-502, and shall be filed as a fixture filing in the Official Records of the County in which the Property is located and covers goods which are or are to become fixtures on the Property. [SIGNATURE ON FOLLOWING PAGE] 89 310 IN WITNESS THEREOF, Borrower has executed this Subordinated Deed of Trust on the day and year first above written. BORROWER: By: Johnson & Johnson Investments, LLC, a California limited liability company Its Co-Administrative General Partner By:----------- Daniel J. Johnson, Member By: Community Revitalization and Development Corporation Its Managing General Partner By: __________ _ David Rutledge, President 90 311 A Notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STA TE OF CALIFORNIA COUNTY OF -------- ) ) ) SS. On ___________ , before me, _____________ , a Notary Public in and for said State, personally appeared, ________ _ -----~ who proved to me the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity(ies) upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature of Notary Public [SEAL] 91 312 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005- 04 IN THE CITY OF MOO RP ARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY AND ST A TE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 3 7 OF SAID MISCELLANEOUS RECORDS (MAPS). TOGETHER WITH THAT PORTION OF PARCEL IA OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL IA OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; 92 313 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL lA. EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V. BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL RECORDS. ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOT AL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURF ACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. 93 314 EXHIBIT F DANCO SCHEDULE OF PERFORMANCE (DEADLINES) Design Phase: Complete on or before December 31, 2021 Initial Tax-Exempt Bond and Tax Credit Applications: September 9, 2021 Tax-Exempt Bond and Tax Credit Allocations (if initial application is successful): December 8, 2021 Plan Check/ Building Permits: June 2022 Date property must be acquired by Affordable Housing Owner: October 29, 2022 Evidence to City of all debt/equity funds for all Project costs (with comprehensive Project budget): 30 days prior to the scheduled close of escrow Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing: Within 180 days of receipt of Bond and Tax Credit Allocations Grading: To commence within 30 days after acquisition of property by Affordable Housing Owner or affiliate Construction: 24 months from commencement of grading Lease-Up: approximately 3 months following construction completion. 94 315 NEW EXHIBIT J TO DEVELOPMENT AGREEMENT (POWER LINES) (UNDER SEPARATE ATTACHMENT) Replaces Exhibit D and Exhibit G to the Development Agreement (recorded on April 17, 2017 by Instrument No. 20170417-00050720-0) 95 316 CD 0, Ill ........ --.. ---_,. ... ~ ... . :;-;-;. ;: : ;~~;,~.:-8 ~ l -· ; . . . ' ,:~•n . ~ =l<G1 . ~ _........_ H ill ij r•r:t 0 ·-;~• [~ s :1··1 I • ~ • • .EJ p ~:;:j~··,::;~:;, ,J "!-!. -.--, . l. I • f , l ... !t°,J . ' m ::r ::~~} ft•: ~~~""8"". ,..,,,..·t '!<• ;;,•.-BU_'_ lD~c--lN-cc~-~,-,]--,,-~ :§ ~· ~ -•"-~--~= & --~-cQT ----c.·-------, I·-·-I MOORPMK APARTMENTS •i:-:.-.u. ,.....,n:,""' .. •Jtirt ..... SOiEMATlC DESIGN © .. --I PAO.JcCT Sl.J MM AAY lJNTP.•'.lt. I -EE --,.,, .... iOI.NT'S (.ll ~J fUII.N TS~:1-f%•1 !li.2t.Nr!.(2~J 200 lNO'"S f.'K."t!lol.lTYI.N f'S \MN '-"' EAGJ< WT TVPEt l ,6€0 l-2 1Jtt~1,-;S~ :HSCO n UHi 1'S (Ul'°J,,1 l ·l!E'O GUNr.;(t:'o 'li,1 lOTM. 3 t.lJ'41 TS PARKING REQJ1FED ..... -H'EO OJESTF'ERO.-. tl]::V-.,,Ct:..$ ::as~~...c cz !(W.:;F'A(;~ ~SP...CES ,.,, .... 4 ~4:;pN.;:£.S F'R C.V OED ~O◄W<..Al'w:.t.. t ll4Sl-'W::fS A::GIGl&I Q.R~T '-N SPAC ES ASSICNED <PEN ~ 8f'N ::E8 W fSf 11,:1 ?;ICl,t,Ct$ 'TQT,l,l .. t 4 ~~ ,lr,CC ~l!.:t'TM.1.3 f.10(;I UTYlJN~ J l ;?ACE;; t,$SPA GE.S l·A'1 AEMrir<ER. 6 SPNB tJ $PA O: VA.-.,. P O'N B'I PQlES ·:> ~i:~~~~~CN CtrY~f :) ~ AB.o::~run en a n .. ,~ • TOGE:1..N~CIED POWER U.!f=S ---FVT\.A! Ut<l:R~QJl'O l N ES OONCE PT\JAl SITE l'l,o,N f.;.(•h·d.«••.._,, A1-1 ""C 0 :E m ::0 C z m C/) 317 Recording Requested By: CITY OF MOORPARK 799 Moorpark Avenue Moorpark, Ca lifornia 93021 Attention: City Clerk OFFICIAL BUSINESS Document entit led to free record i ng per Government Code Sections 6103 and 27383 llll llllllllll lllllll lllll llllllllll il 1111 M 20170417-00050721-0 1/67 Ventura COU'l ty Clerk and Recorder MARK A . LUNN 04/17/2017 02:20 :64 PM 11 89866 $.00 VA SPACE ABOVE THIS LINE FOR RECORDER'S USE AFFORDABLE H OUS ING AG REEMEN T by and between CITY OF MOORPARK and ESSEX MOORPARK OWNER, LP. Dated as of Apri l 17, 2017 318 AFFORDABLE HO U S ING AGREEMENT THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be effective as of Apri l 17, 2017, regardless of the date of actual execution hereof, and is by and between the· CITY OF MOORPARK, a municipal co rporat ion ("City"), ESS EX MOORPARK OWNER, L.P ., a California limited partne rsh ip ("Owne r"). RECITALS A. The C ity and Owner have entered into a Development Agreement dated Apri l 1 7 , 2017, recorded as Instrument No. 20110<111 -00050121>-0in the Officia l Records of the County of Ventura on Apri l 17, 2017, (the "Development Agreement") pursuant to which Owner will construct a res idential development cons ist ing of 200 apartments on approximately 10.57 acres (the "Property"), described more specifically on Exhibit No. 1 attached hereto and incorpo rated herein by reference, which is located within the City of Moorpark. B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential Planned Development Permit No. 2012-02 ("RPO"), and Zone Change No. 2004-04 ("ZC ") provide for the development of the Property in such manner and the construction of certa in off-site improvements in connection therewith (the "Proj ect"). T he GPA, ZC, RPO and Mitigation Mon itoring Program, as amended , are collective ly referred to as the "Project Approvals". · C. The RPO requ i res that the apartments described on Exh ibit No. 2 attached hereto (located as described on such exhibit) be affordable and ava ilable to households with income that does not exceed spec ified levels, as described on Exhibit No. 2, for the Term (as defined in Article 1 below) of this Agreement. D. The Development Agreement requires that Owner and Affordable Housing Owner mai ntain each and every one of the Affordable Units at all times in the same manner as the market rate units , i nc lud ing, but not limited to the quality and maintenance of flooring, window coverings , appliances, heat ing and air conditioning systems , storage SP,ace and type , and th e number and location cf required pa rking spaces. E. The Development Agreement requires that th is Affo rdable Housing Agreement be executed by Owner and delivered to City for record ing , and that this Affordable Housing Agreement not be subord inate to any l iens (except for property taxes and assessments not yet due). F. As permitted by the Development Agreement, Owner may apply for approval of an air r ights subdivision such that the Affordable Un its may be conveyed to and separately owned by a si ngle entity affiliated with Owner (as described in the Development Agreement) and used sole ly as affordable rental units in accordance with this Agreement. Su~h affiliated entity is referred to herein as the "Affordable Housing Owner". -2- 1 2853-001 812043447v3.doc 319 NOW, THEREFORE, in cons ideration of the mutual covenants and undertakings set forth herein and other good and valuab le cons ideration, the receipt and sufficiency of which are hereby acknowledged, the City and Owner hereby agree as follows : ART ICLE 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions. Capitalized terms used here in shall have the following meanings. "Affordab le Housing In Lieu Fee· shall mean the annual fee paid to the City in exchange for the Owner and Affordable Housing Owner not being obligated to provide four (4) additiona l Affordab le Low Income Units in additio n to the 50 Affordable Units requi red by this Agreement. "Affordable Housing Owner'' shall mean the si ngle entity to which the sixteen (16) Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax exempt bond financ ing and low income housing tax credits are used with respect to the Project described in Section 2.1 below; however, until Owner conveys such Affordab le Units to Affordable Housing Owner, and if Owner never conveys the Affordab le Un its to Affordable Housi ng Owner, and to the extent of its ownership of the ten (10) Units described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing Owner" as well as the "Owner''. "Affordable Rent" shall mean the rent described in Section 2.9, subject to Sect ion 2.10. "Affordab le Units" sha ll mean the rent-restricted dwelling units for Low Income Households, Very Low Income Households a nd Moderate Income Households described in th is Affordable Hous ing Agreement. "Agreement" shall mean this Affordable Housing Agreement. "City'' shall mean the City of Moorpark, Californ ia , a municipal corporation. "County" shall mean Ventura County. "County Med ian Income" shall mean the Median Income adjusted by actua l househo ld size as published annually by the Department of Housi ng and Community Development (HCD) of the State of California for the County, wh ich Median Income levels shall be adjusted concurrently with publication of adjustment of the same by HCD (or if HCD discontinues such publication, then such reasonable replacement publication as may be selected by City in good faith). "Density Bonus" shall mean the density bonus granted by the C ity to Owner in connection with the Project pursuant to the Project Approvals, which requires the Developer to construct the Project. and also requ ires that at least twenty pe rcent (20%) (i.e., 40 units) of the tota l dwelling un its in the Project be rented at an Affordable Rent to Very Low Income households (i.e., 50% of County Median income) and Low Income -3- 12853·0018\204344 7v3.cloc 320 households (i.e ., 80% of County Median Income) and an addit ional five percent (5%) (i.e . 10 Un its) of the total dwelling units in the Project be rented at an Affordable Rent to Moderate Income households (i.e. 120% of County Median income). "Development Agreement· shall mean that certain Deve lopment Agreement dated Ap ril 17, 2017, recorded substantially concurrently herewith in the Official Records of the County of Ventura. "HCD" shall mean the Department of Housing and Community Development (HCD) of the State of Cal ifornia. "Initial Rent-Up" shall mean the period between the issuance of a certificate of occupancy for the first residentia l unit in the Project and "S tabilization" (as defined below). "Low Income" or "Lower Income· shall mean a househo ld income that does not exceed eighty percent (80%) of the County Med ian Income, adjusted for household size a·pprop riate to the Unit. The household income amount for Lower Income households shall be based on the amount most recently published by HCD as the Household Income Lim its for Ventu ra County ("HCD Income Li mits") or such successor information i n the event the referenced published information is no longer avai lable. "Low Income Household" or "Lower Income Household" or "Low Income Tenant" means individuals or households qual ified on the bas is of a "certi fication of tenant eligibility" as certified by such individual or household, who have a gross income which does not exceed Low Income, adjusted for household size. "Low Income Units" means Units rented t o Low Income Households. "Moderate Income" shall mean a household income that does not exceed o ne hundred twenty percent (120%) of the County Median Income, adjusted for household size appropriate to th e Un it. The household income amount for Moderate Income households for any year shall be based on the amount most recently published by HCD as the Household Income Limits for Ventura County ("HCD Income Limits") or such successo r information in the event the referenced published information is no longer ava ilable. · . "Moderate In come Household" means individuals or households qual ified on the basis of a "certificat ion of tenant eligibility" as cert ified by such individual o r household , who have a gross income which does not exceed Moderate Income, adj usted for household size . "Moderate Income Units" means Un its rented to Moderate Income Households. "Owner" shall mean Essex Moorpark Owner, L.P ., and any permitted assignee of its rights, powers and responsibilities, or any successor in interest to any portion of or interest in the Project or Property. 321 "Project" i s the residential development described in RPO 2012-02 consisting of up to 200 apartments located on the Property, together with structu res . improvements, equipment, fixtures, and other personal property owned by Owner or Affordable Housing Owner and located on or used in connection with all such improvements and all functionally re lated and subordinate fac i lities , and all improvements required by the Project Approvals. "Project App rovals " is defined in Recital B above. "Property" shall mean that rea l property in the City of Moorpark, California described on Exh i bit No . 1. ·stabilization" shall mean the time at wh ich the Project ach ieves ninety pe rcent (90%) occupancy for ninety (90) consecutive days. 'Term" shall mean from the date of recordat ion of this Agreement until the later of: (i) the date that the Property is no longer zoned for any resident ial use and cannot be used fo r any residential use o r purpose as a "non-conforming use" and has no res idential occupancy; o r (ii) fifty-five (55) years after the recordation of this Agreement. "Units" shall mean res idential dwelli ng units. "Utility Allowance" shall mean the utility allowance set forth in the chart attached to this Agreement as Exhib it No . 2 and re fe rred to in Section 2.9 . "Very Low Income" shall mean household income that does not exceed f ifty percent (50%) of the County Median Income, ad justed for household size appropriate to the Unit. The household i ncome amount for Very Low Inco me households shall be based on the amount most recently pub lished by HCD as the Household Income Limits for Ventura County ("HCD Income Lim its") or such successor information in the event the referenced published information is no longer available. "Very Lo w Income Household" means individuals or households qualified on the basis of a "certificat ion of tenant eligibilit y" as certified by such indiv idual or household, who have a gross income wh ich does not exceed Very Low Income, adjusted for household size. "Very Low Income Un its" means Units rented to Very Low Income Households. 1.2 Rules of Construction. 1.2.1 The singular form of any word used herein, including the term s defined herei n shall include the plural and v ice versa. The use herein of a word of any gender shall include corre lative wo rd s of all genders. 1.2 .2 The words "hereof," "here in," "hereunder," and words of sim ilar import shall refer to this Agreement as a whole. -5- 12853·0018\2043447v3.doc 322 1.2.3 All of the terms and provIsIons hereof shall be construed to effectuate th e purposes set forth in t his Agreement and to susta in the va lidity 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, constructi on, or effect of the provisions he reof. 1.2.5 In the event the Development Agreement and this Agreement conflict, the provision more beneficial to the City, as determined by t he C ity Manager, shall govern. ARTICLE 2 AFFORDABLE HOU SIN G IMPLEME NTATION AND RENTAL RE STRI CT IO N PLAN AND USE OF PROPERTY 2 .1 Purpose of Restrict ions. A. The provisions of this Ag reem ent are intended to impose affordability restrictions and household income restrictions on the Affo rdable Units in the Project, specifically t here shall be sixteen (16) Very Low Income Units, twenty-four (24) Low Income Units , and ten (10) Moderate Income Units , all as more particularly set forth on Exhibit No . 2. B. However, Owner may obtain Federal low income housing tax c redits and tax-exempt bonds (collective ly, "Affordable Housing F inancing") to finance the Project, which will require that forty ( 40) of the Affordable Units be restricted for rent to Very Low Income Households during the perio ds 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 Proj ect Period "). At the end of whichever is the last t o expi re of the Compliance Period and Extended Use Period and the Qualified Project Period, Owner shall rent the ten (10) Moderate Income Units to Low Income Households consistent with the requirements of this Agreement. Upon the the last to expire of t he Compliance Pe riod and Extended Use Period and the Qualified Project Peri od, t he provisions of this Agreement shall be applicable and the number of Very Low Income Units, Low Income Units, and Moderate Income Units shall be consi stent with Section 2 .1.A. above and Exhibit No. 2 . 12853·0018\2043447v3.doc At t he time the Project is no longer requi red to comply w ith Affordab le Housi ng Financing, the C ity , Owner and Affordable Housing Owner shall in good faith, and consistent with app l icable law and this Agreement, prepare a plan to transition the Affo rdable -6-323 Un its so that the number of Very Low Income Units, Low Income Units, and Moderate Income Units in the Pro ject is as required by Secti on 2 .1A above and Exhibit No . 2 and that the re are Very Low Income Households, Low Income Households, and Moderate Income Households occupying the Affordab le Units cons istent w ith Section 2 .1.A. above and E xhib it N o. 2 in the shortest possible time. 2.2 Agreement to be Reco rded; Pri ority. Owner and Affordab le Housing Owne r rep resen t, warrant, and covenant that they will cause this Agreement to be recorded in the Office of the County Recorde r of Ven tura County, California, and that th i s Ag ree ment shall be sen ior in priority to any lien , encumbrance or other matter of reco rd except as express ly approved in writi ng by City. The Owner or Affordable Hous ing Owner shall pay all fees and cha rges in connection with any such reco rdati on . 2.3 Use of the Property. Owner represents, warrants , and covenants to develop and operate the Proj ect and Property as a multifamily resident ial rental property and uses incidental thereto and for no other purposes. Owne r and Affordable Housing Owner agree that t he Affordable Units shall have the same or better amenities (in type , quality and number) as the market-rate units in the Project (as determ ined by the Co mm unity Development Director) and shall be located as described on the site plan attached to Exh ibit No. 2. Such amenities for the Affordab le Units shall include, without limitation, ai r conditioning/heating , plumb ing and electrical fi xtu res , garbage disposal, flooring, cab inet s, counter tops, t ri m, built-in dishwasher, clothes washer and dryer, sinks, bathtub, sola r or sola r stub o ut, water heater, built-in oven, microwave, stove, bathroom fan (the most quiet model), garage door opene rs, doors and door hardware, and floor and window cove rings (all to the same extent provided for the market rate units). Owner and Affo rdable Housing Owner shall promptly notify City in writing upon any relocation of an Affordab le Un it under this Agreement (meaning change in the designated/intended househo ld income level, not an actual change in the fixed locations of the Affordable Uni ts, which const itute a sepa rate subdivided parce l, and a re fixed as shown at the end of Exhibit No. 2), an d each such not ice shall include the bas is for such relocat ion and the location of such relocated Affordable Unit(s); however, the ten (10) Moderate Inco me U nits to be owned by the Owner of the market-rate Uni ts shall be ran domly dispersed among its Units in the portion of the Pro ject owned by the Owne r consi stent with E xh ibit No . 2 . Owner and Affordable Housi ng Owner further agree not to convert the Project or any part thereof to any type of common interest development, for-sa le condom iniums, community apartments, planned development, stock cooperative, hotel, mote l, or any type of congrega t e care or ass isted living f ac i lity (bu t the fo rego ing shall not prohi bit the air rights subdivision and conveyance described in Reci tal F above). Owner and Affordable Housing Owner agree that they shall not knowingly pe rmit any of the Units in the Project to be used on a transient basis and shall not rent any Un i t for a period of less than th irty (30) days. At no time shall any of the Affo rdable Un its be rented to an employee, agent, officer, cont racto r of any owner of any portion of the Property or Project or of any company affil iated with any such owner, or to any such affiliated company. -7- 12853-00 18\2043447v3.<!oc 324 2.4 INTENTIONALLY OMITTED 2.5 Ru les. In addition to the conditions and restrictions to be contained in leases or ren tal agreements as provided in this Agreement, ongoing operation of the Project will be subject to reasonable house rules, policies and regulations issued from time to time by Owner and Affordable Housing Owner and approved by City which approval shall not be unreasonably withheld, cond it ioned, or delayed ("Rules"). Owner and Affordable Housi ng Owner shall submit such Rules to City during the Initial Rent-Up for the City's approval, which will not be withheld, conditioned or delayed . Annually, Owner and Affordable Housing Owner shall submit any amendments, modifications or changes to such Rules to the City at least forty-five ( 45) days prior to thei r proposed effective date and all of such amendments, mod ifi cations and changes shall be subject to the City's prior written consent, which will not be w ithheld, conditioned or delayed. If City does not consent, City shall specify the reasons in writing so that Affordable Housing Owner can revise the amendment(s), modification(s) or change(s) and re- submit them for City approval, which will not be withhe ld, conditioned or delayed. In addition, Owner and Affordable Housing Owner shall submit to the C ity 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 i nto between Owner or any affi liate of Owner and the California Tax Credit Allocation Committee . 2.6 Single Owner. Except for the ten (10) Moderate Income Units (which will be Low Income Units until the last to end of the Compliance Period and Extended Use Period and the Qualified Project Period, as set forth in Section 2.1.B. above, and will be owned by the owner of the market-rate Units), all of the Affordable Units shall be and remain owned by the Affordable Housing Owner (an affiliate of the Owner of the market- rate Units). Such ten (10) Units (Moderate, or Low Income until the last to end of the Compliance Period and Extended Use Period or the Qualified Project Period) may be owned by Owner but shall be subject to this Agreement. No Affordable Unit may be sold separately. 2 . 7 Affordable Units Generally. 2. 7.1 Allocation/Dispersal of Affordabl e Units. As set forth on Exhibit No. g, the Affordable Units shall be randomly dispersed throughout the Project, and as described in Section 2.3 above, Owner and Affordable Housing Owner shall promptly notify City in writing of any change in the designated income level of any Affordable Unit. 2 .7.2 Accessib le Compliant Units. Four (4) of the nineteen (19) one- bedroom one-bath affordable Low and Very Low Income units shall be compliant with all laws regarding disabled persons (including, without limitation, the Americans with Disabilities Act) and shall be reserved for and occupied by persons e l igible for such accommodations, to the extent there is a qualified accessible Low or Very Low Income person ready to occupy such unit. Owner and Affordable Ho using Owner shall maintain a waiti ng list for the affordable accessib le-compliant units, shall promptly deliver a copy -8 - 12853·001812043447v3.doc 325 thereof to City and shall thereafter deliver a copy of the revised list to City whenever the list changes. Should there be a qualified Low or Very Low Income prospective tenant desiring to rent such a unit but all such unit s are rented , Owner and Affordable Housing Owner shall add such prospective tenant to t he waiting list for the affordable accessible- compliant units. At the earliest possible time a Low or Very Low Income non-accessi ble compliant affordable unit becomes available, the non-accessible low or Very Low Income tenant who occupies the affordable accessible compliant unit shall be relocated to another affordable unit in order to allow the qualified d isabled household to occupy the accessible compliant unit. Owner and Affordable Housing Owner shall include a provision in the non-accessi ble compliant affordable lease for any accessible-compliant affordable unit that the non-accessible Low or Very Low Income tenant agrees to be relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible compliant unit becomes available. While any of the four (4) affordable accessib le- compl iant units are not bei ng l eased to disabled persons (due to unavailability of such persons to lease), the applicable Affordable Unit shall be leased in accordance w ith this Agreement. At all ti mes, Affordable Housing Owner shall keep City i nformed i n writing of the income level applicable to each accessible compliant unit. The fixed locations of the Affordable Units shall be as shown on the site plan attached to Exhibit No. 2. The accessible compliant units shall be consistent with accessibi lity design criteria established by the State of California, and Owner and Affordable Housing Owner shall promptly make any changes to such units required by new laws or changes in laws. Reasonable accommodation shall be made, as may be requested by specific Low or Very Low Income disabled tenants in such units, to provide features such as smoke alarms w ith flashing lights, for instance, if requested by hearing impaired Low or Very Low Income tenants i n an accessible compliant unit. 2.7.3 Affordable Housing In lieu Fee. 2.7.3 .1 In add it ion to the Affordable Units herein described, Owner and Affordable Housi ng Owner shall pay (and be jointly and severally li able for) a single annual in l ieu fee for having irrevocably elected not to p rovide four ( 4) addit ional Low Income units (the "Affordable Housing In lieu Fee"). The modification of affordabil ity levels for Affordable Housing Financi ng purposes (as described i n Section 2.1, 2.12 and Exhi bit No. 2), shall not affect the foregoing. 2.7.3.2 The Affordable Housing In lieu fee shall initially be Forty Seven Thousand Five Hundred and No/100 Dollars ($47,500.00) if paid on or before January 1, 2019. If the i n it ial payment is not paid by January 1, 2019, it shall i ncrease by two percent (2%) each year above the prior year amount. Similarly, all subsequent annual payments shall increase by two percent (2%) of the previous year's payment. Payments shall be made on March 10 of the first calendar year in which one or more residential unit in the Project has t heretofore been occupied, and on or before -9- 12853-0018\2043447v3.doc 326 March 10 of each subsequent ca lendar year. If March 10 falls on a Saturday, Sunday, or City Holiday, then payment shall be due on the City's next bus iness day. A late payment charge ( constituting liquidated damages) equal to ten percent ( 10%) of the payment due shall be added to payments rece ived three (3) days or more after the due date as stated herein or when a deficient c heck has been given for payment, and the parties hereby stipu late and agree that it wo uld be very difficult and impractical to determine the damages suffered by City, as a pub lic ent ity, due to late payments. Payments received more than ten (10) days after the due date shall, in add ition to the ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the due date through and including th e date the payment is rece ived by the City. In the event of a sale, transfer, ass ignment of any type or any portion of the Project or Property by Owne r o r Affordable Housing Owner to any other entity not owned in whole or in part by Owner, the fee amount refe renced above shall be increased based on the new value of the P roperty as if it had been reassessed by the Ventura County Assessor and not exempt from the payment of new property taxes. The calculation shall provide the City 0.095% (equiva lent to $950.00 per $1 mill ion of assessed value) of the assessed value or such higher percentage of the total new property taxes if the City portio n has been increased by action of the State of California or by a statewide initiative o r refe rendum. (For example , if the sale resul ts i n a value of $50 ,000,000.00 then the annua l fee to the City would be $50,000,000.00 X .00095 = $47,500.00, or if the City portion of the property taxes has been increased by the State of Californ ia on a statewide initiative or referendum then the amount wou ld i ncrease). In the event the payment to the City under this calcu lat ion would be less than the In itial Affordable Housing In -lieu Fee Amount , inclusi ve of any 2% ad ju stments applied as of the date of sale, transfe r or assignment, then such adjusted In itial In -lieu Fee Amount shall cont i nue until such time as the calcu lation in th is paragraph wou ld yie ld a higher annual fee. 2 .7.4 Preference Policies. To the extent permitted by app l icable state and federa l law, prio rity shall be granted to eligible City of Moorpark residents . A waiting list for the Affordab le Un its shall be maintained from which vacancies shall be filled . The wait i ng list shall be established through a fai r process for the selection of the next eligible househo lds to fill the vacancies allowing for priority for City of Moorpark res id ents to th e extent permitted by appl icab le state and federal law. Details of th is process shall be submitted in writing to the City for review and app ro va l prior to the issuance of the first building permit for th i s project. Additionally, Affordable Housing Owner shall submit to City an annual report, no later than January 30 of each calenda r year for the pervious calendar year, describing the vacancies fi lled from households on the list, total vacancies filled and the number of households on the list. 2.7.5 Occupancy Reporting. As specified i n Section 2.12, Owner and Affordable Housing Owner will advise City on a quarterly bas is in writing of the number of Affordable Units occupied by Very Low, Low and Moderate Income Tenants by delivery of a certificate in the form specified by the City, wh ich is attached hereto as Exhibit No . 3 , which shall i nclude a statement as to whether or not the tenant was a City of Moorpark resident who on the waiting l ist and was g iven pri ority. Any reporting -10- 12853·0018\204344 7\13 .doc 327 schedule less frequent than quarterly must be expressly approved in writi ng by the City Manager. 2.7.6 Unit Classification. An Affordable Un it occupied by a Very Low Income Tenant, a Low Income Tenant, or a Moderate In come Tenant shall be deemed , upon terminat ion of occupancy by such tenant (whether vo l untarily or invo luntari ly), to be continuous ly occupied by a Very Low Income Tenant, a Low Income Tenant, or a Moderate Income Tenant , as applicab le, until re-occupied other than for a temporary period (not to exceed 60 days), at which time the classificat ion of the Unit shall be redetermined (provided that upon such reclass ification, Affordable Housi ng Owner must remain in compl iance with this Agreement). Owner and Affordab le Housing Owner shall use commerc ially reasonable efforts to prevent such temporary periods from exceeding s ixty (60) days. Owner and Affordab le Housing Owner will also obtain and maintain on file such Certifications of Tenant Eli gibility in the form of Exh ibit No. 3 attached hereto, for each Very Low, Low and Moderate Income Tenant. Owner and Affordab le Housing Owner shall make a good faith effort to verify that the in come declared by an applicant in an income certification is accurate by revi ewing any one or more of the following documents, wh ich shall be provided by the appl icant: (a) A pay stub for the most recent pay period ; {b) An income tax return for the most recent tax year; (c) An income verificat ion form from the applicant's current employer; (d) An income verificat io n form from the Social Security Administration and/or the California Department of Social Services if the appl icant receives assistance from e ither of those agencies: or (e) If the applicant is unemployed and has no tax return , another form of independent verification is needed. In add ition to the above -referenced in come certification , eligible Very Low and Low Income app licants for the ADA compliant units shall sub m it a letter from a physic ian or other document acceptab le to the City, Owner and Affordable Housing Owner wh ich confirms the accessibil ity needs of the applicant. 2.7.7. Lease Provisions . The Owner and the Affordable Housing Owner shall i nclude provisions in all signed leases or rental agreements for all Affordable Units which authorize the Owner or Affordable Housing Owner, as applicab le, to immediately term inate the tenancy of any tenant occupying an Affordable Unit where one or more of such tenants have mis rep resented any fact materi al to the qualification of such an ind ividual or household as a Very Low, Low or Moderate Income Tenant and/or for qua lification for occupancy of an Affordable Unit, and Affordable Housing Owner and Owner shall reasonab ly enforce such termination rights (i.e., Affordable Housing Owner or Owner, as applicab le, 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 cert ification or recertification of income, as required by -11 - 1 2853-00181204 3447v3.d oc 328 the City, and shall be subject to rental increases in accordance with Sectio n 2.10 of this Agreement. 2.7.8 Management Diligence. Owner and Affordable Housing Owner shall use -commercially reasonab le efforts not to allow any rent-ready Affordab le Un it to remain vacant. 2 .7.9 Administration by City: Administ rative Fee. City shall appoint a staff person to oversee the implementation of this Agreement, and shall notify Owner and Affordable Housing Owner in writing of the name and phone number of such staff person and any replacements. On or before the first day of February of each year during the Term of this Agreement, commencing after the first residential occupancy of the Project, Affordable Hous ing Owner and Owner shall pay to the C ity for the administration of th is 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/Rive rside/Orange County metropolitan area. The ca lculation shall be made by copying such CPI for the month of October to the CPI for the previous October. (b) The annua l percentage amount pa id to City by the Local Agency Investment Fund (LAIF}, calcu lated as follows: The sum of the quarterly effective yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most recent four (4) calendar quarters divided by four (4). In the event the CPI or LAIF i s discontinued or revised, such successor index with which they are replaced shall be used to ach ieve substantially the same result, or it the re is no successor index, then another index shall be used to achieve substantially the same result. 2. 7 .1 O Lease Provisions. The provis ions relating to certification and recert ificat ion of income i n the form of lease or rental agreement used by the Owner or the Affordable Housing Owner for the lease or renta l of the Affordable Units shall be subject to review and approval by the City, the approval of which shall not be unreasonably withheld , condit ioned, or delayed. If the lease or rental agreement provis ions specified in this Section are not approved or disapproved within thirty (30) days after submittal to City, they shall be deemed approved . 2.8 Rent-Up Periods and Occupancy Procedures. 2.8.1 For initial re nt-up only, for each ten (10) units rented in the Project (i .e., both Affordable Units and other un its), at least two (2) must be Affordable Un its wh ich comply with this Agreement. -12- 12853·00181204344 7v3 .doc 329 2.8.2 During the Initial Rent-Up, the Very Low Income Units occupied by Very Low Income households, plus those Un its he ld avai lab le for occupancy by such tenants, shall be equal to or exc eed sixteen (16) units (subject to Secti on 2.1 above). 2.8 .3 During the Initial Rent-Up , th e Low Income Units occupied by Low In come households, plus those Units he ld ava ilab le for occupancy by such tenants , shall be equa l to or exceed twenty-four (24) un its (subject to Section 2.1 above). 2.8.4 During th e Initial Ren t-Up, the Moderate Income Units occupied by Moderate Income hous eho lds, pl us those Units held available for occupancy by such tenants , shall be equa l to or exceed ten (10) units (subject to Section 2.1 above). 2.8.5 In connection with the Initial Lease-Up of the Project , Owner and Affordable Housing Owner will adopt outreach programs to locate qualified tenants for the Project and shall establish such procedures for occupancy, rental , and rent grievances as may be reasonab ly requ ired by the Ci ty. Not later than ten (10) days prio r to the commencement of marketing, Owner and Affordable Housing Owner shall prepare and submit to the City for reasonab le approval a marketing and outreach program wh i ch shall conta in , among other th ings, the following: how a potential tenant would apply to rent a Unit in the Project, incl uding where to app ly, applicable income limits and rent levels; support documentation needed such as pay stubs, tax returns, or confirmation of disability, if applicable, a description of procedures Owner and Affordable Housing Owner will follow to publici ze vacancies in the Project , inc luding notice in newspapers of general circulation , including at least one Spanish-language newspaper and mai li ng not ices of vacanc ies to or contacting by telephone potential tenants on the waiting l ist maintained by Owner and Affordable Housing Owner. Notices shall also be given to organizations in Ventura County which provide referrals or other services to persons with disabilities. 2.8.6 In the event that any Affordable Un it is rendered unfit for occupancy (inc luding by damage or destruction), then unt i l the Affordable Un it is repaired/reconstructed (so that it is avai lable for leasing in compl iance with this Agreement). Owner or Affordable Housing Owner , as applicable , shall pay the City a single fee of $10 (wh ich 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 o r Affordable Housing Owner is diligently attempting to repair or re-bui ld the Affordable Unit in question, as shown by reasonable evidence provided to City. 2.9 Affordab le Rent. 2.9.1 Month ly 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 Exh ibit No. 2 is defined in Section 50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom un it, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom un it. -13- 12853-0018\2043447v3.doc 330 2.9.2 Monthly rent charged to Low Income Tenants shall be no greater than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for family si ze appropriate for the Unit, less the Utility Allowance . "Fami ly size appropriate to the Un it", as shown on Exh ibit No. 2 is defined in Section 50052.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 2.9.3 Monthly rent charged to Moderate Income Tenants shall be no greater than thirty percent (30%) of one hundred and ten (110%) of County Median Income, adjusted for fami ly size appropriate for the Unit, Less the Utility Allowance. "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined i n Section 50052.S(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 2.9.4 Utility Allowances will be adjusted annually using the most current "Allowances for Tenant Furnished Utilities and Other Services " (fonm HUD-52667) based on Apartment/Wa lk Up unit type as posted and updated annually by the Area Housing Authority of the County of Ventura based on the following app liances/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) 2.1 o Alternative Affordable Rent Calculations. If the requirements or practices of the California Tax Credit Allocation Committee (CTAC), the California Debt Limit Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities simi larly associated with anticipated financ ing of the construction of this project, or future prudent refinanc ing of this project, utilizes definitions, sources of infonmation, etc., other than those wh ich have been herein defined and utilized in ca lculating Affordable Rent, then the procedure or input which produces the lowest affordable rent, will preva i l. 2.11 Income Recertification: Rent Increases. 2.11.1 Owner and Affordable Housing Owner shall cause the income of each Tenant of an Affordab le Unit to be re-certified on an annual basis on the ann iversary date of each such tenant's initial rental date. This recert ification shall be subm itted in writing to the City within thirty (30) days of such action. 2.11.2 Rents for the Affordable Units may be i ncreased only once per calendar year, concurrently with or subsequent to any increase i n the County Median Income when and as determined by HCD. The rents charged for the Affordable Units following such an increase, or upon a vacancy and new occupancy by a Very Low, Low or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent calcu lated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below. -14- 12853·00 18\204344 7"3.d<>c 331 2.12 Increased Income of Occupying Households. Only after the last to expire of the Co mpliance Pe riod and Ext end ed Use Period or the Qual ified Project Period with respect to the Very Low Income Units and the Low I ncome Un its rented to Very Low Income Households, and at all times for the ten (10) Moderate Income Units regardless of whether they are rented t o Moderate Income Households or rented to Low Income Households, the following shall app ly: 2.12.1 If, upon income recertification, the Owner or Affo rdable Housing Owner, or both , as appl icable, determi nes that the ho useho ld income of a Very Low Income Tenant has increased above the maximum allowabl e household income leve l of a Very Low Income Tenant, but rema i ns equa l to or below that of a Low Income household, then, except as provided below in th is Sect ion 2.12, the Owne r or Affordab le Housing Owner, or both, as applicabl e, shall not be requ i red 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 · un it (less the utility allowance), upon sixty (60) days written notice to the occupants thereof. In that event, the next avai lab le unit that was previously a Low Income Un it must be rented to (or held vacant and available for immediate occupancy by) a Very Low Income household . 2.12.2 If, upon income recertification , the Owner o r Affordab le Ho using Owner, or both , as appl icable , determines that the househo ld income of a Very Low or Low Income Tenant has inc reased above th e maximum allowable household i ncome of a Low Income Tenant, to not more than Moderate Income, w hi ch is one hundred and twenty percent (120%) of med ian inco me, then the Owner or Affo rdable Ho using Owner, or both, as applicab le , shall not be required to ev ict the Tenant and the monthly rent charged to such Tenant shall be no more than one twelfth (1/12) of th irty pe rcent (30%) of one hundred ten percent (11 0%) of the County Median Income for the size household approp riate to the un it, less the ut i lity allowance. In th is event, the ne xt availab le unit that was prev ious ly a Moderate Income unit must be rented to or held vacant and ava il able for i mmediate occu pancy by a Very Low or Low Income household, as the case may be , at an affordable rent (1/12 of 30% of 50% of Med ian Income, in the case of a Very Low Income unit, or 1/12 of 30% of 60% of Median Income , in the case of a Low Income unit, both of which are net of the utility allowa nce). 2.12 .3 If, upon income re-certification , the Owner or Affordab le Housi ng Owner. or both, as app licable, determ ines that the i ncome of a tenant occupying one of the Affordable Units has i ncreased and now exceeds that of a Moderate Income household, the Tenant is no longer elig ible to rent the unit , and the Owner o r Affordable Housing Owne r , or both, as applicable, shall not increase the rent but shall provide written notice to the Tenant to vacate the unit within six (6) months. If an appropriate unit is avai lable to subst itute for said unit, and the "substitute unit'' has not been one of the Affordab le Units , provided that sa id substitute unit is of the same configurat ion and size as the un it currently occupied by the now ineligible Tenant, the Affordable Housing Owner may request authorization from the City Manager or hi s/he r designee to substitute the like un it for the Affordable Un it, and cause the rent on the substitute unit to be at th e sa me leve l of affordabi lity as the un it that was occupied by t he fo rmerly -15- 128 53·0018\2043447v3.doc 332 eligible Tenant, and the C ity Manager shall use good faith efforts to respond w ithin thirty (30) days. Notwithstanding the foregoing, any such Tenant shall have the right to request a recertification of income (not later than sixty (60) days prior to the date they are supposed to vacate). If t he 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 Pe riod or the Qualified Project Period, the foregoing provisions shall not apply to the units rented to Very Low Income Households, but shall continue to apply to the ten (10) Moderate Units that are to be rented to Low Income Tenants during such period (and owned by t he entity which also owns the market rate Units). Until the last to end of the Compliance Period and Extended Use Pe riod or the Qualified Project Period , Owner and Affordable Housing Owner shall comply wit h laws and regulations, and any separate/additional recorded rest rictions or "Regulatory Agreement" requi red by the Affordable Housi ng Fi nancing. Owner and Affordable Housing Owner shall promptly deliver to City copies of all Affordable Housing Financing regu latory agreem ents or similar agreements restricti ng Un i ts in the Project, and shall notify C ity and all affected tenants in writing of the e xpiration of the Bond Period at least one (1) calendar year (but not more than fourteen (14) months) prior to expi ra tion of the Compliance Period and Extended Use Period or Qual ified Project Period, whichever expires later, of any effect on the affordability level of their Affordable Units. Additionally, Owner and Affordable Housing Owner shall notify City in writing of any re -syndicati on or extension o f tax credit financing and any defeasance or refinancing of bond financi ng as soon as they become reasonably likely. 2.13 Specific Enforcement of Affordabil ity Restrictions. 2.13.1 Owner and Affo rdable Housing Owner hereby agree that specific enforcement of Owner's and Affordab le Housing Owner's agreements to comply w ith the allowable rent and occupancy rest rictions of this Agreement is one of the reasons fo r the C ity's issuing the Project Approvals and entering i nto the Development Agreement. 2.13.2 Owner and Affordable Housing Owner further agree that, in the event of any breach of such requ irements, potentia l monetary damages to C ity, as well as prospective Very Low, Low and Moderate Income Tenants, would be difficult, if not impossible, to evaluate and quanti fy. 2.13.3 Therefore, i n addition to any other rel ief or damages to which the City may be entitled as a consequence of the breach hereof, Owner and Affordable Housi ng Owner agree to the imposition of the re medy of specific performance against it i n the case of any event of default by Affordable Housing Owner in complyi ng w ith t he -16- 12853-001812043447"3.doc 333 allowable rent, occupancy res tricti ons or any othe r provision of this Agreement. Noth ing herein shall impa ir City's rights to liqu idated damages under Section 6.4 be low. 2.14 (INTENTIONALLY OMITTED] 2.15 Reporting Requirements. 2.15.1 From the commencement of constructi on unti l the end of the first quarter or the end of the ca lendar quarter in which constructi on of the Project was completed , whichever occurs later, Owner and Affordab le Housing Owner shall prepare and subm it to the City, on a quarterly basis, written reports, setting forth the rental activity for the previous month, and the curre nt tota l number of Affordable Units occup ied by tenants . 2 .15.2 Commencing with the first full calendar quarter after the last period covered by monthly reports pursuant to Secti on 2.15.1, Owner and Affordable Housing Owner shall prepare and subm it to the City, on a quarterly bas is, not later than the 15th day of each calendar quarter, a Certificate of Continu ing Program Compliance in a form substantially s im ilar to Exhibit No. 4 attached heret o, stating: (a) the number and percentage of Affordab le Units in the Project which were occup ied by Very Low, Low and Moderate Income Tenants, or he ld vacant and availab le for occupancy by such Tenants during said period; and (b) that to the knowledge of the Affordable Housing Owner, no default has occurred under the provisions of th is Agreement; and (c) such other informat ion as may be requested in writing by the City Manager. 2.15.3 Owner and Affordable Housing Owner shall prepare and submit to the City, on an annual bas is, a report in form and substance reasonably satisfactory t o the City, not later than March 31st of each year fo r the preced i ng ca lendar year, summariz ing the vacancy rate of the Affordable Units in the Project on a month-to- mont h basis for such calendar year. 2 .15.4 Owner and Affordable Housing Owner shall also deliver t o City from time to time any other information about the Affordable Units and the rental the reof as may be reasonably requested in writing by City with in ten (10) days after any such written request. ARTICLE 3 OPERATIONS 3.1 [IN TENTIONALLY OM ITTED) 3.2 Management Agent. 3.2.1 The Project shall at all times be managed by the Owner or the Affordab le Housing Owner or a s ing le third -party management agent with demonstrated ability to operate, and experience in operat ing, resident ial ho using including restricted affordable housing, in a manner that will provide decent, safe and sanitary residentia l fac ilities to occupant s thereof, inc luding experience in complying with reportin g requ i rements and occupancy restricti ons similar to those imposed upon the Project by -17- 12853-0018\2043447v3.doc 334 the terms of thi s Agreement. {There may only be one manager for the entire P roject at any one tim e.) 3.2.2 The Owner or the Affordable Housing Owne r, directly or through an affiliate, may be t he "manager" of the Project. The Owner and the Affordable Housing Owner may retain on-site personnel and other consultants and service providers to assist Owner and the Affo rdable Housing Owner to operate the Project effectively and in compliance w ith t he provisions of this Agreement and state and federal law. 3.2.3 In the event that Owner or Affordable Housing Owner seeks to appoint a replacement management entity to manage the Project, they shall advise the City of the identity of any such qualified management agent not later than thirty (30) days prior to the effective date of such appointment. The Owner and the Affo rd able Housing Owner shall also submit such add itiona l information about the background, experience and financial condition of any proposed management agent as is reasonably requested by the C ity. 3.2.4 Upon the C ity's written request, the Owner and the Affordable Housing Owner shall cooperate with the City in an annual review of the management practices and status of Project. The purpose of each annual review will be to enable the City to determi ne if the Project is being operated and managed i n accordance with t he requ irements 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, t he Owner, the Affordable Housing Owner and the management agent: 3.3.1 Day-to-day operation of the Project will be under the direct supervision of an on-site management agent, or a resident manager who will report to the management agent. 3.3.2 There w i ll be regular meetings as necessary between the Owner, the Affordable Housing Owner and the management agent for t he purpose of reviewing policies, procedures, resident re lations and budget control. 3.3.3 Owner shall notify the City in writing of the direct phone number and email address of the management agent (so that City may contact the management agent directly), and shall cause the management agent or it s personnel to be available on a twenty-four hour a day basis to respond to City inqui ries. 3.4 Staffing Arrangements. Owner and Affordable Housing Owner shall provide for adequate on -site staffing of management personnel to m anage t he Project in a prudent and busi nesslike manner. In addition, Owner and Affordable Housing Owner shall provide such security services as may be necessary or appropriate for the Project. All hiring of on -site personnel shall conform to applicable equal opportunity guideli nes, w ithout regard to race, rel igion, color, national origin or sex. All hiring materials w ill indicate that the Project is an "Equal Opportunity Employer." Employment grievances , terminations and promotions will be conducted accord i ng to personnel policies and -18- 12853-00 18120434 47v3.doc 335 procedures wh ich conform with equal opportunity laws. All personnel employed at the Project w ill receive trai ning specific to Owner's policies and procedures. 3.5 City Ability to Modify. If the Project is not timely comp leted in accordance with the Schedule of Performance in the Development Agreement, the City may modify the development standards and to change the General Plan designation and zoning of the Property, and Owner and Affordable Housing Owner hereby waive any rights they might otherwi se 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 C ity for occupancy of the first un it of the Project, and on each anniversary thereof, Owner and Affordable Housing Owner shall pay to C ity a single community services fee of E ight Thousand Dollars ($8,000.00) increased by two percent (2%) on each anniversary of the Operative Date ( as defined in Section 18 of the Development Agreement). ARTICLE 4 MAINTENANCE 4.1 Maintenance, Repai r, Alterations. Owner and Affordable Housing Owner shall maintain and preserve the Project and the Property in good condition and repair and in a prudent and businesslike manner. If any portion of the Project is damaged, restoration of the damaged improvements shall be made by Owner and Affordable Housi ng Owner to a cond it ion as good as existed prior to the damage. Owner and Affordable Housing Owner shall complete promptly and in a good and workmanlike manner any improvements which may now or hereafter be constructed as part of the Project and pay when due all clai ms for labor performed and material furni shed therefor. Owner and Affordable Housi ng Owner shall comply with all laws, ordinances, rules, regulations, covenants, condit ions, restrictions, and o rders of any governmental authority now or hereafter affecting the conduct or operation of the Project and of their busi nesses on the Project or any part thereof or requiring any alteration or improvement to be made the reon. Owner and Affordable Housing Owner shall maintain grounds, sidewalks, roads, parking , and landscaped areas in the Project (and on any adjacent areas owned by either of them) in good and neat order and repair. Owner and Affordable Housing Owner hereby agrees that City may conduct from time to time through representatives of its own choice who are properly identified as agents of the C ity, upon reasonable written notice and subject to reasonab le security and safety procedures and rights of tenants in possession , on-site inspections and observation of such records of Owner and Affordable Housing Owner relating to the Project and the Property as City reasonably deems to be necessary or appropriate in order to monitor Owner's compliance with t he provisions of this Agreement. Owner and the Affordable Housing Owner shall assure that each Affordable Unit receives the same level of maintenance and repa i r and upgrades or i mprovements as all other units in the Project. -19- 12853-0018\20434471/3.doc 336 The Owner and the Affordab le Housing Owne r shall conduct an ongoing maintenance prog ram, wh ich shall include the following: a. Schedu led preventative ma intenance and repair of installed equipment in accordance with manufactu rers' reco mme ndations. b. Routine repa irs to kitchen app liances, electrical , plumbing and heating eq uipment. c. Prevent ative annua l apartment inspections to regu larly and consistently ascertain the co ndition of each apartment un it. d. Preve ntat ive regu lar inspections of common areas and equ ipment as well as regula r schedu les (dai ly, week ly, monthly, quarterly, etc.) for maintaining the same . This will include maint enance of exte ri or areas to keep grounds free of graffiti, litter, tras h and paper. Pa rki ng areas will be maintained in good repair and free from dirt and litter. Common areas such as hallways and la undry rooms will be swept and c leaned regu larl y and kept free of trash and other debris . Garbage removal will be provided through arrangements with a contracto r, consistent with applicable City ordinances . The trash areas will be swept regularl y and scrubbed w ith disinfectan t when necessary. Exterm i nati on services will be contracted with to provide pest cont rol cons istent with high quality apartment management prac tices. e. Co ntract with a landscape firm to ma i nt ain the landscaped areas in an attractive and healthy cond ition. f . Int erior pa inting and carpet cleani ng o r replacement in indiv idual apartment un its shall be based on need, substantiated by the annual physical inspection, o r as occupancy changes, or as the Owner and Affordab le Housing Owner or their manage ment agent may otherwise deem necessary. g. Owner and Affordab le Housing Owner wi ll employ a maintenance wo rk order procedure in the Project to adequat ely document request s for work and promptness with in which the wo rk has been comp leted. 4.2 Disclaime r. Nothing in this Agree ment shall make City responsib le for making or completing capital repairs or replacements to the Proj ect or the Property or require City t o expend funds to make or comp lete the sa me. ART ICLE 5 TERM 5.1 Term of Agreement. Th is Agree ment sha ll remain i n full force and effect for the T erm. ARTICL E 6 DEFAULT AND REM EDIE S 6 .1 An Event of Default. Each of the following shall constitute an "Event of Default" by the Owner he reunder: -20- 12853·0018\2043447V3.doc 337 6.1.1 Fai lure by the Owner or Affo rd ab le Housing Owner to duly perform, comply w ith and observe the conditions of Project approval, conditions, terms, or covenants of the Development Agreement or th is Agreement, if such fa ilure remains uncured thirty (30) days after written notice of such failure from the City in the manner provided herei n 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 fai ls to diligently and continuously proceed with such cure to completion. In no event shall the City be precluded from exercising remed ies if an Event of Default is not cured within ninety {90) days after the fi rst not ice of default is g iven or such longer period as may be agreed upon by both parties in writing. If a d ifferent period or notice requirement is specified under a ny other section of this Agreement, then the spec ific provision shall contro l. 6.1 .2 Failure by Owner and the Affordable Hous ing Owne r to cure any default under Section 2.15 within fifteen (15) business days after written notice of such defau lt by City. 6.1.3 Any representat ion o r warranty conta ined in this Agreement or in any app lication, financial state ment, certificate, or report submitted to the City by Owner or Affordable Housing Owner proves to have been incorrect in any material respect when made, if such failure remains uncured thirty (30) days after written notice of such failure fro m City to Owner in the manner provided herein or, with respect to a default that cannot be cu red within thirty (30) days, if the Owner and the Affordable Housing Owner fail to commence such cure with in such thirty (30) day period or the reafter fai l to d il igently and continuous ly proceed with such cure to completion. 6.1.4 A court having jurisdiction shall have made or rendered a decree or order {a) adjudging Owner or Affordable Housi ng Owner to be bankrupt o r insolvent; (b) approving as properly f i led a petition seeking reorganization of Owner or Affordable Housing Owner or seeking any arrangement on beha lf of the Owner under the bankruptcy law or any other appl icable debtor's re lief 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) appo inting a receive r, trustee, liquidator, or assignee for the benefit of credito rs of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of i ts properti es wh ich (or who) is not discharged within sixty (60) days after its appoi ntment; or {d) directing the winding up or liquidation of the Owner or Affordable Housing Owner, provid ing, however, that any such decree or order described in any of the foregoing subsections shall have continued unstayed or undischarged for a period of ninety (90) days. 6.1.5 The Owner or Affordable Housing Owner shall have assigned its assets for the benefit of its cred it ors or suffered a sequestration or attachment or execut ion 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 pe rmitted for cure hereunder) or prior to sale pursuant to such sequestration, attachment , or executio n. If the Owner or Affo rdable Housing Owner is diligently working to obtain a return or -21 - 1 2853-0018\2043447v3.d0c 338 release of the property and the City's interest hereunder is not imminently threatened in the City's reasonable bus iness judgment , then the Cit y shall not declare a default under this subsection. 6.1.6 The Owner or Affordable Housing Owner shall have voluntari ly suspended its bu siness fo r a period of thirty (30) consecut ive days or dissolved and a subsequent owner has not assumed the obl igations of Owner or Affordab le Housing Owner (if applicable) in accordance with this Agreement. 6.1. 7 Should any default be declared by any lender under any loan document or deed of trust re lating to any loan made in connection with the Project or Property, which loa n is secured by a deed of trust or other instrum ent of record , and is not cured within the applicab le cure period , if any, granted in the appl icable loan documents. 6 .2 Liens. 6.2.1 This Agree ment shall be sen ior in prio rity to any lien or encu mbrance on the Property (other than the Deve lopment Agreement) and all liens and encumbrances shall be subord inate and subject to this Agreement, regardless of actual date of recordation . T he City shall cons ider in good fa ith , reasonable modifications of th is Agreement typ ically required by secured lenders and commonly known as "mortgagee protection• provisions; howeve r, in no event shall any such modification sho rten the term of this Agreement or contain or requ ire any subordination of prov isions of this Agreement. 6.2.2 Owner and Affordable Housing Owner shall pay and promptly d ischarge when due, at their cost and expense , all liens, encumbrances and charges upon their respective inte rests in the Project or the Property, or any part thereof or interest therein (except the lien of any mortgage, deed of trust or other recorded instrument securing any construct ion or permanent financing fo r the Project, wh ich shall, in any event, be junior and subord inate to this Agreement), provid ed that the ex istence of any mechan ic's, labo rer's , materialman's, supplier's , or vendo r's li en or right thereto shall not constitute a violat ion of this Section if payment is not yet due under the contract wh ich is the foundation thereof and if such contract does not postpone payment for more than forty-five (45) days after the performance thereof. Owner and Affordable Hous ing Owner shall have the right to contest in good faith the val id ity of any such lien , encumbrance or charge, provided that within ten (10) days after service of a stop notice or ninety (90) days afte r recording of a mechanic's lien, Owner or Affordable Housing Owner shall deposit with City a bond or other security reasonably sat isfactory 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 furthe r that Owner o r Affo rdab le Housing Owner shall thereafte r dil igently proceed to cause such l ien, encumbrance or cha rge to be removed and discharged , and shall, i n any event, cause such lien, encumbrance or cha rge to be removed or discharged not later than sixty (60) days prior to any foreclosu re sale. If Owner or Affordable Housing Owner shall fa il either to remove and discharge any such lien , encumbrance or charge o r to -22 - 12853-0018\2043447v3 .doe 339 deposit security i n accordance wi th the prec ed ing sentence, if appl icable , then, in add ition to any other right or remedy of City , City may, but shall not be obligated to , discharge the sam e, without inqu iring into the va lid ity of such lien, encumbrance or charge nor into the exi stence of any defense or offset thereto, eithe r by paying th e amount cla imed to be due , or by procuring the di scharge of suc h l ien , encumb rance or charge by depositing in a court a bond or the amount or otherwise givin g secu ri ty fo r such cla im, in such manner as is or may be prescribed by law. Owner and Affordab le Housing Owner sha ll , immediately upon writte n demand thereof by City, pay to C ity an amount equa l to all costs and expenses incu rred by City in connection with the exercise by C ity of the forego ing right to di scharge any such lien , encumbrance or charge. To the extent not paid, all costs and expenses pa id by the City shall be a lien on the Property pursuant t o Civil Code Secti on 2881. 6.3 Costs of Enforcement. If any Event of Defau lt occurs, and is continu ing, City may employ an attorney o r attorneys to protect its ri ghts he reunder. Subject to Cal ifornia Civil Code Section 1717, the non-preva iling party promises to pay to the prevailing party, on de mand , the fees and expenses of such attorneys and all other costs of enforc ing the obl iga tions secured hereby including without l imitation , recording fees , rece iver's fees and expenses, and all other expenses of whatever kind or nature, incurred by the preva ilin g party i n connection wi th the enfo rcement of th is Agreement, whet her or not such enforcement includ es the filing of a lawsu it. 6.4 Enforcement of this Agreement; Remed ies. Upon the occurrence of any Event of Default by Owner or Affordab le Housing Owner, City shall be ent itled to enforce performance of any ob ligat ion of Owner or Affordable Housing Owner aris ing under this Agreement and to exercise all rights and powers under this Agreement or any law now or hereafter in force. Additionally, withou t limiting any of City's other r igh ts or remed ies, upon any leas ing of a part icular Affordab le Un it in vio lation of this Agreement, then Affordable Hous ing Owner shall pay the City a si ngle fee of $10 (which shall i ncrease by $2 every five (5) years) per day unti l the violation has been cured (it being understood that if the Affordable Unit is unavailable due to materia l damage o r destruction, Section 2.8.6 above shall govern). Additionally, City shall be entitled to recove r from Affordab le Housing Owner and Owner, in addition to enforcement costs and any oth er damages t o wh ich City may be entitled , all rent cha rged by Owner in excess of the rental amounts permitted under this Agreement , with interest thereon from the date paid to Affordab le Housing Owner until the date paid by Affordable Housing Owne r to City at the lesser of eight percent (8%) per annum or the ma ximum rate perm itted by law. Affordable Housing Owner and Owner stipulate, acknowledge and agree that the amounts described herein are reasonable estimates of the mini mum damages incurred by the City and public as a result of violation(s), a nd that actual damage would be imp ractical o r impossible t o determine with accuracy. No remedy herein conferred upon or reserved to City is intended to be exclus ive of any other remedy he re in or by law provided or permitted , but each shall be cum ulative a nd shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equ ity or by statute. Every power or re medy given by this Agreement to the City may be exercised, concurrently or independently, from time to ti me and as often as may be deemed expedient by the City, and the City may pursue inconsistent remedies . The -23- 12853-0018\2043447v3.<foc 340 City shall have the right to mandamus or other suit, action or proceed ing at law or in equity to require the Owner and the Affordab le Housing Owner to perform its obligations and covenants under this Agreement or to enjo in acts or things wh ich may be unlawful or in vio lation of the provisions hereof. ARTICLE 7 GENERAL PROVISIONS 7 .1 Notices. All notices, certificates or other communicat ions requ ired or pe rm itted 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 9302 1 Attention : City Manager If to the Owner or the Affo rdable Hous ing Owne r: ESSEX MOORPARK OWNER, L.P. Attention : John D. Eudy 1100 Park Place, Suite 200 San Mateo, CA 94403 With requ ired cop ies to: ESSEX PORTFOLIO, L.P. Attention: Jordan Ritter 11 00 Pa rk Place, Suite 200 San Mateo , CA 94403 and ESSEX MOORPARK OWNER, L.P. Attention: Bob Linder 17541 Derian Avenue , Suite 110 Irvine, CA 92614 Either party may change its address for notices by a written notice given in accordance with th is Section. Notices shall be deemed given on the date of actual delivery or refusal to accept delivery as shown o n the return receipt (if sent by certified ma il), o r one (1) bus iness day after delivery to the messenger service (if sent by overnight messenger). 7.2 Relationsh ip of Part ies. Nothing contained in this Agreement shall be in terpreted or understood by any of the part ies, or by any third persons, as cre ating the relationsh ip of employer and employee , principal and agent, limited or general partnership, or joint venture between the City and the Owner or the C ity and the -24- 12853,0018\2043447v3 .doc 341 Affordab le Housing Owner, or the City and any agents, employees or contractors of the Owner or Affordable Hous ing Owner, and the Owner and the Affordable Housing Owner shall each at all times be deemed an indep endent 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 operat ion of the Project. The Owner and the Affordable Hous ing Owner have and hereby retain the right to exercise full contro l of employment, direction, compensation and discharge of all persons assisting in the performance of services hereunder. In regards to the on-site operation of the Project, the Owner and the Affordable Housing Owner shall be sole ly respons ible for all matters relating to payment of its employees, including compliance with Social Security, withho lding and all other laws and regu lations governing such matters. The Owner and the Affordable Housi ng Owner each agrees to be sole ly responsible for its own acts and those of its agents and employees. 7.3 No Claims. Noth ing conta i ned in this Agreement shall create or justify any claim against the City by any person the Owner or the Affordable Housing Owner may have employed or with whom the Owner or the Affordab le Housing Owner may have cont racted relative to the purchase of materials, supp l ies or equipment, or the furnishi ng or the performance of any work or services with respect to the operation of the Project or the Property. 7.4 [INTENTIONALLY OMITTED] 7.5 l imitation of liability. 7.5.1 No member, official, employee, agent or attorney of the City shall be personally liable to the Owner, or any successor in interest, or the Affordable Housing Owner, or any successor in interest, in the event of any default or breach by the City or for any amount which may become from the City or successor or on any City ob ligation under the terms of th is Agreement. No member, official, employee, attorney, partner or consultant of the Owner or the Affordable Housing Owner shall be personally liable to City in the event of any default or breach by Owner o r for any amount wh ich 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 provis ion or obligation to the contrary contained in this Agreement , (i) the liabil ity of Owner and Affordab le Housing Owner under this Agreement to any person or entity, i ncluding, but not limited to , City and its successors and assigns, is lim ited to the i r interests in the Project and the Property, and such persons and entities shall look exclusively thereto, or to such other security as may from time to time be given for the payment of obligations arising out of this Agreement or any other agreement securing the obligations of Owner or Affordable Housing Owner, under this Agreement, (ii) from and after the date of this Agreement, no deficiency or other personal judgment, nor any orde r or decree of spec ific performance (other than pertaining to th is Agreement), shall be rendered against Owner or Affordab le Hous ing Owner, or their assets (other than their interests in the Project, and this Agreement ), in any action or proceed ing arising out of this Agreement. -25- 12853·0018\2043447v3.doc 342 7 .6 Force Majeure. Whenever a party required to perform an act under this Agreement by a certain time, said ti me shall be deemed extended so as to take into account events of force majeure. As used herein "force majeure" shall mean a delay in performance hereunder due to acts of God, fire, earthquake, flood, extreme weather condit io ns, explosions, war, invasion, insurrection, riot, mob violence, sabotage, acts of terrori sm, vanda li sm, malicious m ischief, inability to procure or general shortage of labor, equipment, facilities , materials or supplies in the open market, failure o f transportation, strikes, lockouts, actions of labor unions, third party litigation, condemnation, requisition, governmental restrictions includ ing, without li mitation, inability or delay in obtaining government consents or permits, laws or orders of governmental, civil, military or naval authorit ies, or any other cause, whether similar or dissimilar to the forego ing, not within t he party's control, other than lack of or inability to procure monies to fulfil l its commitments or obl igatio ns under thi s Agreement. 7. 7 Indemnificatio n of City. Except w ith respect to claims that arise solely from negligence, fraud or w ill fu l misconduct by the City or its officers, employees or agents, Owner and the Affordable Housing Owner shall defend, i ndemnify and hold City harmless from and agai nst any and all claims, losses, damages, l iabilities, costs and expenses arising directly or indirectly from, or re lating directly or indirectly to: (i) any failure by Owner o r Affordable Housing Owner to comply w ith the terms of this Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii) any negligence or willful misconduct by Owner, Affordable Housi ng Owner or any of thei r employees, agents, contractors, licensees, invitees o r tenants on the Project or the Property. 7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the parties are cumulative, and the exercise or failure to exercise one or more of such rights or remed ies by either party shall not preclude the exercise by it , at the same time or different times, of any right or remedy for the same default or any other default by the other party. No waiver of any default or breach hereunder shall be i mplied 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 i n the waiver, and such wavier shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term, or condition contai ned herein shall not be construed as a waiver of any subsequent breach of the same covenant, term or cond ition. The consent or approval by the City to or of any act by the Owner or Affordable Housing Owner requiring further consent or approval shall not be deemed to waive or render unnecessary the consent or approval to or of any subsequent si milar 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 C ity in the exerci se 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 ob l igation, agree ment o r covenant of the Owner or Affordable Housing Owner under this Agreement. No delay or omission to exercise any right or power accruing upon any -26- 12853-0018\2043447v3.doc 343 default shall impair any such r ight or power or shall be construed to be a waiver of such right or power, but any such right or power may be exe rcised from time to time and as often as City may deem expedient. In order to entitle the City to exercise any remedy reserved to i t 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 .1 O Severability. If any term , provision, covenant or condit ion of this Agreement is held in a final di sposition by a court of competent jurisdict ion to be invalid, vo id or unenforceable, the remaining provisions shall continue in full force and effect unl ess the rights and ob ligations of the parties have been materially altered or abridged by such inva lidation , vo iding or unenforceability. 7.11 Lega l Actions. In the event any legal act ion is commenced to interpret or to enforce the terms of this Agreement or to collect damages as a resu lt of any breach thereof, the party prevailing in any such act ion shall be entitled to re cove r against the party not prevailing all reasonable attorneys' fees and costs incurred in such action (including, without limitation, all reasonable lega l fees incurred in any appeal or in any action to enforce any resulting judgment). 7.1 2 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 th i s Ag reement to Owner or Affordab le Housing Owner shall be deemed to apply to any successor or ass ign or successor-in-interest of such party who has acquired any portion of or interest in the Project. Without limiting the forego ing, City may assign this Agree ment 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 Bind ing Effect; Successors and Assigns. Owner and Affordable Housing Owner each covenant and ag ree 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 comp ly with all of the terms, provisions, easements, cond itions, 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 .1 4 Transfers. Owner shall provide the City with prompt notice of any conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the applicab le deed. Owner shall provide the City with at least thirty (30) days' prior written not ice of any sale or transfer of the Project or the Property or any portion thereof. The Affordable Units shall at all times rema i n owned by a single entity. Written notice shall be given to the City of any transfer, but no consent of the C ity shall be required for any transfer of Affordab le Units to an entity of which the Essex Portfolio, L.P. or any affiliate thereof, d irectly or indirectly, owns or controls the entity to which the transfer will be made, provided that the C ity is given a copy of the Assignment and Assumptio n -27 - 12853-001812043447v3 .doc 344 Agreement and organizationa l document s that prove the entity is such an affiliate of Essex Portfolio , L.P. 7.15 Time of the Essence . In all matters under this Agreement, time is of the essence . 7.16 Complete Understanding of the Parties. The Project Approva l s and this Agreement const itute the ent ire understanding and agreement of the parties with respect to the matters descri bed he rein and therein . 7.17 Const ruct ion and Interpretation of Agreement. The part ies hereto acknowledge and agree that this Ag ree ment has been prepared jointly by the parties and has been the subj ect of arm's length and careful negotiat ion over a considerable period of time , that each party has reviewed this Agreement with legal counsel , and that each party has the requis ite experience and sophistication to understand, interpret and agree to the part icular language of the provisions of this Agreement. Accordingly , i n the event of an ambiguity in or dispute regarding the interpretation of th i s Agreement, notwithstanding Civi l Code Section 1654, th i s Agreement shall not be interpreted or construed against the party prepa ring it , and instead other ru les of int erpre tation and construction shall be utilized. 7.18 Controll ing Law: Venue. This Agreement shall be deemed to be entered int o in Ca l ifornia 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 fo r any actio n brought under this Agreement will be in the Supe rior Court for the County of Ventura , California or in the United States District Court for the Central District of California. Owner and Affordab le Housing Owner each he reby accepts for itself and in respect to its property, generally and unconditionally, the non-exclusive j urisd iction of the fo regoing courts. Owner and Affordable Housing Owner each irrevocably co nsents to the service of process in any action or proceeding by the mailing of copies the reof by reg iste red or cert ified mail , postage prepaid , to Owner and Affordab le Housing Owner at its address for notices pursuant to this Agreement. Noth i ng contained herein shall affect the right of the City to serve process in any other manner perm itted by law. 7 .19 Hazardous Materials. 7 .19.1 Definitions. The following spec ial definitions shall apply for the purposes of this Section: (a) "Hazardous Mate ri als " shall mean : (1) any "hazardous substance" as defined in Section 101(14) of CERCLA (42 U.S.C. Section 9601(14)) o r Section 25281(d) or 25316 of the Ca lifornia Health and Safety Code at such time; -28 - 12853-0018\2043447v3 .doc 345 (2) any "hazardous wat er," "infectious waste" or "hazardous ma terial" as defined i n Section 25117, 25117.5 or 25501 U) of the California Health and Safety Code at such time; (3) any other waste, substance or ma terial designated o r regu lated in any way as "toxic" or "hazardous " in the RCRA (42 U.S .C. Section 6901 et seq.), CERCLA Federa l Water Pollut ion Contro l 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 Wate r Code (Section 1300 et seq.) at such time; and (4) Any add itional wastes, substances or material which at such time are class ified , cons idered or regulated as hazardous or toxi c under any other present or future environmental or other similar laws relat i ng to the Project or the Property. {b) "Haza rdous Materials Laws" means all fede ral, state, and local laws, ordinances, regu la tions, o rders and d i rectives pertaining to Ha zardous Materials, in, on or under the Proj ect, the Property of any portion thereof. 7.19.2 Certai n Hazardous Materials Covenants and Agree ments. The Owner and Affordable Housing Owner hereby agree that: (a) Neither shall knowing ly permit the Project , the Property or any port ion thereof to be a site for the use, generation, treatment, manufacture, storage, disposal or transportation of Haza rdous Materials or otherwise knowing ly permit the presence of Hazardous Materials in, on or under the Project or the Property. For the pu rp oses of this Section only, the term "Hazardous Materials" shall not incl ude: (1) construction materials, ga rdening materials, household products, office supp ly products, o r janitorial supply products customarily used in the construction , ownership , operation , ma intenance, or management of residentia l developments or associated bu ildings and grounds, or typically used in res idential activities, in a manner typical of other res idential developments which are comparable to the Project; or (2) certain substances wh ich may contain chemica ls listed by the State of California pursuant to Health and Safety Code Section 25249.8 et seq., which substances are common ly used by a significant portion of the popu lation living with in the region of the Project, includ i ng (without l imitation) alcohol ic beverages, asp i rin, tobacco products, and saccha rine. {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 P roperty or any portion thereof to be in vio lation of, any Hazardous Materials Laws. (c) Upon receiving actual knowledge of the same, the Owner o r Affordable Housing Owner shall im mediate ly advise the City in writing of: (1) any and all enforcement, c leanup , removal or other governmental or regu latory actions instituted, -29 - 12853·001812043447v3.doc 346 completed or threatened against the Owner or the Project o r the Property pursuant to any applicable Hazardous Materials Laws; (2) any a nd all claims made or threatened by any third party against the Owner or Affordable Housing Owner or the Project or the Property relating to damage, contribution, cost recove ry, compensation, loss or injury resulting from any Hazardous Materials (the matters set forth in the foregoing clause (1) and this c lause (2) are hereinafter referred to as "Hazardous Materials C laims"); (3) the presence of any Hazardous Materials in, on or under the Project or the P roperty; o r (4) the Owner's or the Affordable Housing Owner's discovery of any occurrence or conditi on on any real property adjoining or in the vici n ity of the Project classified as "borderzone property" under the provi sions of California Health and Safety Code, Section 25220 et seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership, occupancy, transferability or use of the Project or the Property under any Hazardous Materials Laws. 7.19.3 Indemnity. Owner and Affordable Housing Owner hereby agree to indemnify, protect, hold harmless and defend (by counsel reasonably approved by the City) the City, and its C ity Council members, office rs, employees, contractors, agents and attorneys from and against any and all claims, losses, damages, liabilities, fines, penalties, charges, administrative and judicial proceedi ngs and orders, judgments, remedia l action requirements, enforcement actions of any kind, and all costs and e xp enses incurred in connection therewith, including, but not lim ited to, reasonable attorneys' fees and expenses(collectively, a "Loss "), a rising directly or indirectly, in whole or in part, out of (1) the fai lure of the Owner or the Affordable Housing Owner, as applicable, or any other person or entity occupying or present on their respective interest i n the Project or Property, to comply w ith any Hazardous Materials Law relating in any way whatsoever to the handling, treatment, presence, re mova l, storage, decontamination, c leanup, 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 rele ases or discharges of any Hazardous Materials into, on, under or from its interest in the Project or the Property; or (3) any activity carried on or undertaken on its interest in the Project or the Property during its ownership thereof, whether by the Owner or the Affordable Housi ng Owner or any employees, agents, contractors or subcontractors, or any third persons at any time occupying or present on the Project or the Property, in connection with the handling, treatment, ·removal, storage, decontamination, c leanup, transport o r disposal of any Hazardous Materials at any time located or p resent on or under the Project or the Property. The foregoing indemnity shall further apply to any residual contamination on or under the Project or the Property, or affecting any natural resources, and to any contamination o f any property or natural resources ari sing in connection w ith the generation, use, handling, treatment, storage, transport or disposal o f any such Hazardous Materials on, under, or from the Project or the Property, and irresp ective of whether any of such activities were or will be undertaken i n accordance w ith Hazardous Materials Laws. However, the fo regoing i ndemnity shall not extend to the portion of any Loss arising from the gross negligence, fraud or w i llful m isconduct of the City or anyone for whose actions the City is legally liable. This Section shall survive termi nation of this Agreement. -3 0 - t2853·00 18\2043447v3.doc 347 7.19.4 No Limitat ion. Owner and Affordable Housing Owner hereby acknowledge and agree that the ir duties, obl igations and liabil ities under th i s Ag reemen t are in no way limited or otherwi se affected by any information the City may have concern i ng the Project or the Property and/or the presence within the Project or t he Property of any Hazardous Materials, whether the City obtained such information from Owner o r Affordable Hous ing Owner or from its own i nvestigations. 7.20 Insurance Requirements. 7.20 .1 Requi red Coverage . Owner and Affordab le Hous ing Owner shall mainta in and keep in force , at the ir so le cost and expense , the following insurance tor their respect ive i nterests in the Proj ect, provided , however, that a Contracto r's l iabi lity pol icy may be used during construction provided it comp l ies with all terms and conditions of this Secti on: (a) Comprehens ive general liability insurance with limits not less than two million dollars ($2 ,000,000) for each occurrence , combined single l im it for bodily injury and property damage, includ i ng cove rages for contractua l l iability, personal injury, broad form property damage, products and comp leted operations. Beginning on the fifth anniversary date of the recordat ion of this Agreement, and thereafter every five (5) years, the policy lim its shall be i nc reased by ten percent (10%) of the then -current limit. (b) Comprehensive automobile liabil ity insurance with limits not less than $2 ,000,000 for each occurrence , combined s ingle limit for bodily i njury and property damage, including coverages fo r owned, non -owned and hired vehicles . Beg inning on the fifth annive rsary date of the recordation of th i s Agreement, and thereafte r eve ry f ive (5) years , the po licy limits shall be increased by ten percent (10%) of the then-current limit. (c) Worker's compensation insurance, fidel ity bonds and/or such other insurance cove rage which is ordinarily and custo mari ly ma inta ined on like ki nd and sized apartment projects with i n the City. (d) A policy or polic ies of insurance aga inst loss or damage to the Project resulting from fi re, windstorm , hail, lightni ng , vanda lism , malicious m i sch ief, and such other perils ordinarily included in extended coverage casualty insurance po licies. In addition, if Owner or Affordable Housing Owner ca rries coverage vo l untarily for add itional causes (such as earthqua ke, riot, civil commotion or other), such coverage shall be treated i n all respects as the pol icy or pol icies requ ired to be kept under th i s paragraph (d) for so long as it continues to voluntari ly carry such coverage. All insu rance hereunder, except earthquake insurance, shall be mainta ined in an amount not less than one hundred percent (100%) of the Full Insurable Va lue of the Project as defined be low (such va lue to include amounts spent for construction of the Project, architectu ral and engineering fees , and inspection an d supervision). "Full Insurable Value of the Projec t" shall mean the actual rep lacement cost exc luding the cost of excavat ion, foundation and footings below the ground level of the Project. To ascertain -31 - 12853-001812043447113 .doc 348 the amount of coverage required, Owner and Affordab le Housing Owne r shall cause the Full Insurable Value to be determined from ti me 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, Owne r and Affordable Housing Owner; except that no such appraisa ls shall be requi red if the policy is written on a "rep lacement cost" bas is . 7.2 0.2 General Requ irements. The insurance required by this Section shall be provided under an occ urrence fo rm, and Owner and Affordab le Housing Owner shall ma inta in such coverage conti nuously so long as this Agreement is in force. Shou ld any of the required insurance be provided under a form of coverage that includes an annual aggregate limit or provides that c laims investigat ion or legal defense costs be included i n such annual aggregate limit, such annual aggregate limit shall be one and one -half times the occurrence lim its specified above . All po li cies shall be with an insurance carrier licensed and admitted to do business in Californ ia and rated in Best's Insurance Guide, or any successo r the reto (or if the re be none , an organization having a nat ional reputation) as having a "Best's Rating" of "A" and a "Financial Size Category" of at least "V II" or if such ratings are not then in effect, the equ ivalent thereof. 7.20.3 Additional Insured. The City shall be named as an add itional insured on the general liability insurance coveri ng the Project and the Property with an endorse ment form as approved by the City Manager or his/her designee. Co m prehensive general liabilit y policies shall also be endorsed to name as add itional insureds the City, and its C ity Council members, officers. agents and em ployees . All po licies shall be endorsed to provide thirty (30) days prior written notice of cancellat ion, reduct ion in coverage, or intent not to renew to the address established for not ices to the City pu rsuant to Section 7.1 of this Agreement. 7.20.4 Certificates of Insurance. Upon the City's request at any time during the Term of this Agreement, Owner and Affordable Housi ng Owne r shall provide certificates of insurance, in form and with insurers reasonab ly acceptable to the City, evidencing compliance with the requirements of this Section, and shall provide comp lete copies of such insurance polic ies, includ i ng a separate endorsement approved by the City Manager or hi s/her designee, as indicated in Section 7.20.3, nam ing the City as an add itional insured. 7.21 Burden and Benefit. City and Owne r and Affordable Housing Owner hereby declare the ir understandi ng. and intent of the burden of the covenants set forth herein touching and conce rn ing the Project and the Property. 7.22 Amendments . Changes and modifications to this Agreement shall be made only upon the written mutual consent of the Parties. However, no changes shall be made to this Agreement which would adve rsely affect any bonds issued under th is Project without the written consent of all appropriate parties with respect to any bond issuance. -32 - 12853-0018\2043447v3.doc 349 7.23 No Third Party Beneficiaries. Thi s Agreement shall not benefit or be enforceable by any person, or firm, or corporation. public or private, except the City, Owner, Affordable Housing Owner and the ir respective successors and assigns. 7.24 Counterparts. This Agreement may be executed in counterparts, which together will be one agreement. 7.25 Assessment Districts; Covenant and Waivers. Owner and Affordable Housing Owner agree to cast affirmative ballots fo r the increase of any assessment for existing assessment districts for the ma intenance of parking and median landscaping, street lighting and parks conferring special benefits. and for the format ion of any new assessment district for such purposes, in order to supplement then-existing assessments upon properties within the Project. Owner and Affordable Housi ng Owner hereby waive any right they or either of them may have to contest or protest such assessments or any assessment increases. In th e event that any such assessment district has insufficient funds for its purposes. then Owner and Affordable Housing Owner shall pay the funds that the assessment district requ ires to the assessment district within five (5) business days after written demand from the assessment district from time to time. ARTI CLE 8 INCORPORATI ON OF CERTAI N DEVELOPMENT AGREEMENT PROVI SIONS The term of the Deve lopment 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 c larify 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 Developm ent Agreement due to a default by the "Develope r" thereunder) and continue until the expiration (or earlier termination) of this Agreement, it being understood that all of the rights and benefits of Owner and Affordable Housing Owner under the following ( except for obligations thereunder arising prior to te rmination and Sections 8.1, 8.4 and 8. 7) shall terminate upon any early termination of the Development Agreement due to a default by Owner or Affordable Hous i ng Owner thereunder. . . 8.1 No Other SeQarate Conveyance of Affordable Un its . Afte r the initial conveyance by Owner to Affordable Hous ing Owner of Affordable Units, Owner and the Affordab le Housing Owner and the ir successors in inte rest shall not convey the i r respective portions of the Property separately, but shall only convey them concurrently and to the same purchaser, only to a purchaser reasonably approved in writing by City (which will consider the reputation and experience of the purchaser in owning and operating affordable rental units). As a condition to the initial conveyance by Owner to Affordable Hous ing Owner of Affordable Un its, Owner and Affordable Housing Owner shall execute, acknowledge and record (i) a separate agreement (i.e., a covenant and agreement to hold property as one pa rcel} imposing the foregoing restriction on the Property, which shall be subject to the written approval of City, and (ii) "conditions, -33- 12853,0018\2043447v3.doc 350 covenants and restrictions" for the Project ("CC&R's"), which shall a lso be subject to the written approval of City. Such separate agreement and CC&R's shall be senior to any and all deeds of trust and other liens ( except property taxes and assessments not yet due). 8.2 Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 8.2.1 Perm itted Uses. The permitted and condit ionally permitted uses of the Property shall be li mited to those that are allowed by the Project Approva ls and the Development Agreement. 8.2.2 Deve lopment Standards. All design and development standards, including but not limited to density or intensity of use and max.i mum height and size of buildings, that shall be app licable to the Property are set forth in the Project Approva ls and the Development Agreement. 8.2.3 Bui lding 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 Titl e 15 of the Moorpark Mun icipal Code and to any federal or state building requirements that are then in effect ( collect ively "the Building Codes"). 8.2.4 Reservations and Dedications. All reservations and dedications of land for public purposes that are app licable to the Property are set forth in the Project Approvals and the Development Agreement. . 8.3 Dens ities Allowed for Development. Owner and Affordable Housing Owner agree that densities vested and incentives and concessions rei:;e ived in the Project Approvals i nclude all densities ava ilable as density bonuses and all incentives and concessions to wh ich Developer is entitled under the Moorpark Municipal Code, Government Code· Sect ions 65915 through 65917 .5 or both; neither Owner nor Affordab le Hous ing Owner shall be entitled to further density bonuses or incentives o r concessions and further agrees that its execution of and compliance w ith this Agreement is in consideration for the . dens ity bonus obtained through the Project Approva ls that is greater than wou ld otherwise be avai lable. Residential Planned Development Perm it No. 2012-02, including the special condition s that in corporate and include all of the requ irements set forth in this Agreement are part of the Project cond itions of approval and not merely cont ractual in nature. · 8.4 Assessment Districts. Prior to issuance of a Zoning .Clearance for the first - bu ild ing permit or the approval of any final map for the Pr.oject: (a) Owner and Affordable Housing Owner shall pay the City a sing le 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 discreti on, shall be formed that i ncludes the Property. The first District out of the two Districts or the first zone of the one District , whichever is -34- 12853·00 18\2 04 3447 v3.doc 351 applicable, shall be for the purposes of funding future costs for the maintenance lan dscaping and irrigat ion 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 basi n la ndscaping and i rriga tio n. 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 ancf Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water bas i n access drive and the emergency access drive. It shall be the intent of the City to approve th e requ ired assessment each year, but to on ly levy that portion of the assessment necessary to recover any past City costs or any antic ipated City costs · for th e th at .fiscal year. The City shall administer th e annual renewal of the Assessment District or Districts, and any costs related to such administration shall be charged to the fund established fo r such Assessment District revenues and expenses . Owner and Affordable Housing Owner agree to cast affirmative ballots for the establ ish ment of both Assessment Districts, or both zones of the one District, as app licab le , and for annual increases in the assessments thereunder, for the purposes specified in th i s subsection. Owner and Affordable Housing Owner hereby waive any right they may have to contest or protest any such assessments or assessment increases. In the event that any such Assessment District has insufficient funds for its purposes, then Owner or Affordable Housing Owner shall pay the funds required to th e Assessment District with i n five (5) business days after written de mand from the Assessment District from time to time. Owner and Affo rdable Housi ng Owner also agree to add this language to any Regu latory Agre ement as part of the sale of any bonds issued by the City for the Project. 8 .5 Fe e Protest Waiver. Owner and Affordable Housing Owner agree that any · fees and payments pursuant to the Development Agreement, this Agreement arid fo r. RPO 2012 -02 shall be made without reservation , and Developer exp ress ly waives the right to payment of any such fees under protest pursuant to California Government · Code Sect ion.66020 and statutes amendatory or supplementary· thereto. · .8.6 Required Tenant and Guest Parking. Owner and Affordab le Housing Owner agree to provide a tota l 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 arid 3- bedroom units, and one space shall be designated and reserved for each of the 1- bedroom un its , with the rem ainde r of the spaces available for guest park i ng. At least •· •. -one of-tho parkir.g spaces des ignated ane reserved for each of the units shall be in a garage or covered carport. There shall be no extra charges for requ ired parking for any units (whether or not they are Affordable Units). Owner and Affordab le Housing Owner shall only be required to provide ninety-four (94) guest parking spaces. 8. 7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge the City's ability to modify the development standards and to change the General Plan designation and zoning of the Property upon the terminat ion or expiration of the Development Agreement (if the Project has not been bu ilt), and Developer h~reby waives any r ights·they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those -35- 12853-0018\2043447v3.doc 352 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") a nd Zone Change No. 2004-04 ("ZC 2004-04"). 8.8 Indemnity. Owner and Affordable Housing Owner w ill defend, indemnify and hold City harmless from and against any and all c la i ms, l iabilities, losses, damages, costs and expenses arising from any activity by Owner o r Affordab le Housi ng Owner or the contractors of either of them. 8.~ Storm Water/Flood Detention Basin. City ag rees that Owner and Affordabl e Housing Owner may use th e storm water/flood detention basin located on the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for th e Project, and City shall execute and deliver a revocable l icense agreement to Owner a nd Affordable Housing Owner to that effect; however, Ci ty may elect by written n oti ce to Owner and Affordable Housing Owner to relocate said detention basin and any service road and secondary access road located on the City Property at any time, and Owner and Affordable Hous i ng Owner shall reimburse or pay City for the costs of such relocation withi n ten (10) business days after written demand from City from time to time describing such costs. Owner and Affordab le Housing Owner shall promptly provide a bond acceptable to City in the amount of such costs, as projected in good fai th by City, to ensure payment of the costs, a nd every two (2) years the amount of the bond s hall be increase d (by amendment or by a replacement bond ) by the percen tage increase over th e applicable two year period in the Caltrans Highway Bid Price Index for Sel ected California Construction Items, as determined in good faith by the City Manager. WHEREFORE, the parties have executed th is Agreement as of the date firs t- above written. C ITY: CITY OF MOORPARK -36- 12853-0018\2043447"3.do<: 353 12853-0018\2043447"3.doc OWN ER: ESSEX MOORPARK OWNER, L.P., a Ca l ifornia l i mited partnership By: Esse x Moorpark GP, L.P., -37 - a Ca lifornia l imited partnership, its general partner By: Essex Management Corporation, a Californ ia corporation, its general partner By: ,,~~= . ~=~!1;7t.)1:1-~ Ct11tr;F,;vV<'/-r~6lL 354 ACKNOWLEDGMENT A notary publi c or other officer completing th is certificate verifies only t he identity of the individual who signed the document to w hich th is certificate is attached, and not the truthfulness, accu racy, or va li ditv of that document. State of California County of San Mat eo on February 23, 201 7 before me, San di A. Cabral, Notary Pu bl ic (insert name and title of the officer) personally appeared _J_o_h_n_E_u_d.,:y _____________________ _ who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to t he wit hin instrument and acknowledged to me that he/she/they executed the same in his/her/their autho rized capacity(ies), and that by his/her/th eir signature(s) on the instrument the person(s), or the e ntity upon behalf of which the person(s) acted , executed the instru ment. I certify under PENAL TY OF PERJURY under th e laws of the Sta te of Cali fornia that the foregoing paragraph is true and correc t. W ITNESS my hand and official seal. s;,,,,wm ~; A ~ (Se a l) I@ SANDIA .CABRAL Commission 112142132 ~ • Nolary Pub lic • Ca lllornla i · San Mateo Cou nty • J M• Comm. Exe ires Feb 9. 2020 f . . 355 CITY OF MOORPARK 799 Moorpark Avenue, Moorpark, California 93021 I Phone (805) 517-6200 I Fax (805) 532-2205 A notary public or.other officer completing this certifica te verifies only the identity of the individual who signed the docume nt to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. STATE OF CALIFORN IA COUNTY OF VENTURA CITY OF MOORPARK PUBLIC AGENCY FORM OF ACKNOWLEDGMENT ) ) ) ss. On this 29th day of Ma rch i n the yea r 2017, befo re me. Maureen Benson, C ity C lerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of sati sfactory evidence to be the person whose name is subscri bed to the within instrument and who is personally known to me to be the person whose name is subscribed to the within instrnment and acknowledged to me that she executed the same in her authorized capac ity as the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged to me that the City executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. ♦ Witness my hand and Official Sea l ~ ,; = / 4, «.ft#. Maureen Benson City Clerk JAN ICE S. PARV IN Mayor ROSEANN MIKOS, Ph.D. Counci1member DAVID POLLOCK CouncU rnembcr KEN SIMONS Co uncllmember MARK VANDAM CounciJmember 356 EXHIB IT NO. 1 TO AFFORDABLE HO USING AGREEMENT LEGAL DESCRIPTION THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS: ALL of Parcel 213 of i n that certain Lot Line Adjustment No. 2005-04 in the City of Moorpar~,-County of Ven,tura, State of Ca lifornia, recorded July 21, 2005 as Document No. 20050721-0178764 or official records in the Office of the County Recorder of sa id County, bei ng a port ion of Lot "T", Tract No. "L", Rancho Si mi , 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 C ity, County and State as shown on Map fi led in Book 5, Page 37 of said Miscellaneous Records (maps). TOGETHER WITH that port ion of Parce l IA of in that certain Lot Line Adjustment No. 200503 in the City of Moorpark, County of Ventura , State of California, recorded May 3, 2005 as Document No. 20050503-0108315 or official records in the Office of the County Recorder of said County, be ing a portion of Lot "T", Tract No. "L", Rancho Sim i as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of sa id County Recorder, lying northerly of the following described line; BEGINN ING at a point in east l ine of Parcel IA of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof; 1st Thence, departing said east line South 89°38 '32"West 752.05 feet; 2nd T hence, South 27 °20'34Wesl 36. 75 feet; 3rd Thence, South 89°03'54'West 293.78 feet to a point in the west line of sa id Parcel 1A. 357 EXH IBIT NO. 2 T O AFFORDABLE HOUSING AGREEMENT TYPE OF UNIT, NUMBER OF UN ITS, HOUSEHOLD SIZE ADJUSTM ENT AND UTILITY AL LOWANCE; LOCATIONS OF AFFORDABLE UNI TS Ve ry Low Income Type of Un it 1-br 2-br/2 bath 3-br Tota l Low Income Type of Unit 1-br 2-br/2 bath 3-br Total Moderate Income Type of Unit 1-br 2-br/2 bath 3-br Total Number of Un its 8 7 1 16 Number of Un its 11 12 1 24 Household Size Adjustment 2 persons 3 pe rsons 4 persons Household Size Adjustment 2 persons 3 persons 4 persons Utility Allowance $156 $175 $199 Utility Allowance $156 .$175 $199 (but must instead be Low Income when tax credit and/or tax exempt bond laws apply to the Project) · · Number of Un its 0 5 .§. 10 Household Size Ad justment 2 persons 3 persons 4 persons Utility Allowance $156 $175 $199 The above Adjustment for Household S ize is intended to provide a single rental rate applicable to eligible tenants for each type of unit, and, therefore, is applied regard less of actual household size. The Affordable Housing Owner may not charge additional rent based on a larger actua l household size. Illustration: For example, the maximum rent for a Very Low Income Household renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura County med ian income for a household of three divided by 12 , less the utility allowance. 12853-0018\204344 7v3.doc 358 Illustration: For example, the maximum rent for a Low Income Household renting a 2-bedroom unit would be calculated as follows: 30% x 60% x the Ventura County median income for a household of three divided by 12, less the uti lity allowance. Illustration: Fo r example , the maximum rent for a Moderate Income Household rent i ng a 2-bedroom unit would be calculated as follows: 30% x 110% x the Ventura County median income for a household of three divided by 12, less the utility allowance. Utility Allowances will be adjusted annually using the most current "Allowances for Tenant Furni shed 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/ut ilities to be provided to the units: · Natural Gas -Heating, cooking, water heating Water, Sewer, Trash, Other Electric allowance (for lights and other electric uses) Locations of Affordable Un its (I ncluding Handicapped-Compl iant Units) The Affordable Units (including handicapped-compliant units) shall be located as sho wn on the site plan attached hereto. · 1285J.0018\2043 447v3.d a<: 359 / (' I I I : . '\. \...,._.,_,. _,,_,,_,,_,,_,,_ .. __ _ S• • • l! I· --. I I . , • • .: ~ t 7. ~ I = • • ! I§ ~ I i ~ ...., ..... ..... ...., z: ::, ... "" :c ..... ..... "" >- < ..... Q,. "" < ... Q,. ... ~ l "" < 0.... • Q,. ' ac:: >< !:t 0 ... J~" ...., i' ~=:~111 360 --- PLAN Al I BEOROOII. I BATH -· -~--- PLAN Bl l BEOROOll. l BATH MOORPARK ... APARTMEN T S T R U ST ESSEX PROPERTY 17'61 o.tllt!M•UO ........ C,\.0761• ,.s,.MJ,,q14 -.Ef<lol~ - --- PLAN A.2 I BEDIOOII. I BATH -· -- - PLAN B2 l SlOROOII. l BATH --- -- PLAN A3 I B[ll®II. I BATH ~ ---· ---· -- PLAN 83 l B[OROOII. l 11.111 UNIT PLANS II OOU.tll . (UlfOU IA -·-1n:JO:wl'"'-S..2SO ,,,,,1 .. ,.11o, ,.,. Oi l"."'' ..,_.___CA~ ..,_ J l,Q * 2623 - ..;. ;;~1 361 i i s ~ ,- ,-~ '-' "'. :z: :::, r cc: 5 f ..... I :c .... I a... "' I .... J cc: -.... < cc: a... ..... < a... -0 I a cc: cc: < a.... a... a :;: ~i! o ,~ -!~" • • • I ::c ...... ':::: J, 362 1. EX HIBIT NO. 3 TO A FFORDAB LE H OUS IN G AG R EEMEN T FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY New Cert ification _____ / Recert ification _____ Unit N umber ___ _ INCOME COMPUTATI O N A ND CE RT I FI CATI ON NOTE TO APARTMENT OWNER: Thi s form is designed to assist you in comput ing Annual Income Re: (NAM E and A DD R ESS of A pa rt m ent Bui ldi ng) To: ----------------------------- 1 /We the undersigned stat e that I/we have read and answe red fully, frankly and personally each of the following questions for all pe rsons who are to occupy the unit be ing app lied fo r in the above apartment project. Listed below are the names of all persons who int end to reside in the unit: 3 . 4 . 5. Name of Members Of the 2. Rela tio nsh ip to Head of Household Social Security Number Place of Employment Household Age Income Computation 6 . The total ant icipated income, calcu lated in accordance with this paragraph 6, of all pe rsons (except chi ldren under 18 years) listed above for the 12-month pe riod beg inning the ea rl ie r of the date that I/we plan to move into a unit or sign a lease for a unit is$ _________ 1 If this fonn Js being compl eted in accordance with recertification of a Lov,er Income Ten.ant's or Very Low Income Tenant's occupancy of a Lower l noome Unit or a Very Low Income Uni t. respectively, this form must be completed based upon the curren t income o f the occupants. 12853-0018\2043447v3.doc Page I ofl8 363 Included in the total anticipated income listed above are: (a) the full amount , before any payroll deductions , of wages and sa laries, overtime pay, commissions, fees, tips and bonuses and other compensation for persona l services ; (b) the net income from the operation of a business or profession. Expenditu res for bus i ness expansion or a mort ization of cap ital indebtedness shall not be used as ded uctions in determining net income. An allowances for dep rec iation of assets used in a business or profess ion may be deducted, based on straight li ne dep reciation , as provided in Internal Revenue Service regu lat ions. Any withdrawal of cash or assets from the operation of a business o r profess ion will be included in income, except to the extent the withdrawal is re imbu rsement of cash or assets invested in the operation by the fam ily; (c) interest and dividends and othe r net income of any kind from real or personal property. Expenditures for amortizat ion of cap ital indebtedness shall not be used as deduct ions in determining net income. An allowance for depreciation is permitted only as authorized in paragraph (6)(b) of th is section. Any withdrawal of cash or assets from an investment will be included in income , except to the extent the withd rawal is re imbursement of cash or assets invested by the fa mily. Whe re the fam ily has net family assets in excess of $5 ,000 , annual income shall inc lude the g reater of the actual income derived from all net fa mily assets or a percentage of the va lue of such assets based on the current passbook savings rate. (d) the full amount of periodic payments rece ived from Socia l Security, annuities , insurance policies, retirement funds , pens ions, disabil ity o r death benefits, and other simi lar types of period ic receipts, including any lump sum amount except deferred periodic amounts from supplementa l security income and social security benefits that are rece ived in a lump sum amount o r in prospect ive monthly amounts; (e) payments in lieu of earn in gs, such as unemployment and disability compensation , worke rs' compensat ion and severance pay ; (f) welfare assistance. If the welfare ass istance paym ent includes an amount specifically designated fo r shelter and ut ilities that is subj ect to adjustment by the we lfare assistance agency in accordance with the actual cost of shelter and ut i lities, th e amount of welfare assistance income to be included as income sha ll consist of: (1) the amount of the allowance or grant exc lusive of the amount specifically designated for shelter o r utilities; plus (2) the max i mum amou nt that the welfare assistance agency cou ld in fact allow the fami ly for shelter and utilities. If the fam i ly's we lfa re assistance is ratab ly reduced form the standard of need by applying a percentage , the amount ca lculated unde r this pa ragraph shall be the amount resulting from one appl ication of the percentage; Page 2 of 18 12853·001812043447113.<loc 364 (g) periodic and determinable allowances, such as alimony and chi ld support payments, and regular contribut ions or gifts rece ived from organizations or from persons not residing in the dwelling; (h) all regular pay, special pay and allowances of a member of the Armed Forces except the specia l pay to a fam ily member serving in the Armed Forces except the special pay to a family member serving in the Armed Forces who i s exposed to hostile fire; and Excluded from such antici pated income a re : (a) income from emp loyment of chi ldren (including foster ch i ldren) under the age of 18 years; (b) payments rece ived for the care of foster ch ildren or foster adu lts (usually persons with disabilities , unrelated to the t enant fami ly, who are unable to live alone); (c) lump sum additions to family assets, such as inheritances, insurance payments (including payments unde r health and accident i nsu rance and workers' co mpensation), capital ga i ns and settlement for personal or property losses except payments in lieu of earnings, such as unemployment and d isability compensation , worker's compensation and seve rance pay; (d) amounts received by the family that are specifically for, or i n re i mbursement of, the cost of medica l expenses for any fami ly membe r ; (e) inco me of a live-in aide, as defined by 24 CFR §5.403; (f) the full amount of student financ ial assistance paid directly to the student or to the educational institution; (g) the special pay to a fam ily member serving in the Armed Fo rces who i s 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 disabil ity that are disregarded for a l imited time for purposes of Supplemental Security Income el igibility and benefits because they are set aside for use under a Plan to Attain Se lf-Sufficiency (PASS); (3) amounts rece ived by a participant in other pub licly assisted programs wh ich are specifically for or in re imbursement of out-of-pocket expenses incurred (special equipment, cloth ing , transportation, chi ld ca re, etc.) and wh ich are made solely to allow participation in a specific program; (4) amounts received under a resident serv ice st ipend is a modest amount (not to exceed $200 pe r month) received by a resident for performing a serv ice for the Page 3 of 18 12853-0018\2043447V3 .doc 365 Publ ic Housi ng Issuer or owner, on a part-time basis , that enhances the quality of life in the development. Such services may include, but are not l imit ed to , fire patrol, hall monito ring, lawn mainte nance, and res ident initiat ives coordination. No resident may receive more than one such st ipend duri ng the same period of time ; (5) incremental earnings and benefits resulting to any fam ily member from partic ipation in qua lif ying State or local employment trai ning programs (including tra ining programs not affiliated with a loca l government) and train ing of a family member as res ident management staff. Amounts excluded by this provision must be received under employment train ing programs with clearly defined goals and obj ectives, and a re exc luded on ly for the period during wh ich the fami ly member participates in the employment training program. (i) temporary , nonrecu rri ng or spo radic income (including gifts); U) repa ration payments paid by a foreign govern ment pursuant to cla ims filed under the laws of that government by persons who we re persecuted during the Nazi era: (k) earnings i n excess of $480 for each full -term student 18 years old or older (exclud ing the head of household and spouse); (I) ado ption assistance pay me nts in excess of $48 0 pe r adopted chi ld; and (m) deferred periodic payments of supplemental security income and socia l secu rity benefits that are received in a lump sum amount o r in prospective monthly amounts ; (n) amounts received by the family in the f orm of refunds o r rebates under State or local law for property taxes pa id on the dwelling unit; (o) amounts paid by a State agency to a fam ily with a membe r 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) amount s specifically exc luded by any other Federal statute from conside ration as income for purposes of determining el igibi lity o r benefits under a category of ass istance programs that includes ass i stance under any progra m to which the exclusions set fo rt h i n 24 CFR §5.609(c) apply. 7. Do the persons whose income or cont ri but ions are included i n item 6 above: (a) have savings, st ocks , bonds, equ ity in real property o r other fo rm of capital i nvest ment ( excludi ng the values of necessary ite ms of pe rsonal property such as furn iture and automob iles and i nt erests in Indian trust land) _____ Yes _____ No ;or (b) have they disposed of any assets (other than at a forec losure or bankruptcy sale) during the last two years at less than fair market value? Page 4 o f 18 12853·00181204344 7V3 .doc 366 _____ Yes _____ No (c) If the answer to (a) or (b) above is yes, does the combined tota l 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 beg inning 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 ind ividuals who propose to reside in the unit full-time students*? _____ Yes _____ No *A full-t ime 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 ma intains a regu lar faculty and curriculum and normally has a regularly enrolled body of students in attendance or is an ind ividual pursuing a fu ll-ti me course of institutional or farm tra i ning under the supervision of an accredited agent of such an education al organization or of a state or pol itical subd ivision 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 fi le a joi nt federa l 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 renta l housing project in which the unit i s located (herei nafter the "Owner"), has any family re lationship to the Owner; or owns d irect ly or indirectly any interest in the Owner. For purposes of this paragraph, indi rect 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 co rporation, partnership, estate or Trustee held by the individual or a family member; and ownership, direct or indirect, by a partner of the individual. 10. This cert ificate is made w ith the knowledge that it will be rel ied upon by the Owner to determine maximum income for eligibility to occupy the unit; and I/we declare that all information set forth herein i s true, correct and complete and based upon i nformation I/we deem re l iable and that the statement of total anticipated income contained in paragraph 6 is reasonable and based upon such investigation as the undersigned deemed necessary. 12853,00 18\204344 7v'3 .doc Page 5 of 18 367 11. I/We will ass ist the Affordable Housing Owner in obtain ing any information or documents required to verify the statements made herein, including eithe r an income verification from my/our present emp loyer(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 dec larat ion will constitute a material breach of my/ou r agreement with the Affordable Housing Owner to lease the unit and will entitle the Owner to prevent or terminate my/our occupancy of the unit by institution of an action for eject ion or other approp ri ate 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, Calif ornia App licant App lica nt Applicant Appl ica nt [Signature of all persons (except chi ldren under the age of 18 years) listed i n number 2 above required) 12853·00181204344 7v3.doc Page 6 of 18 368 FOR COMPLETION BY OWNER/AFFORDABLE HOUSING OWNER ONLY: 1. Ca lculation of eligible i ncome: a. Enter amount entered for enti re 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 remain ing 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 calcu lated 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 appl icant(s) as a Moderate-Income Tenant(s). _______ Qua lifies the applicant(s) as a Lower-Income Tenant(s). _______ Qualifies the applicant(s) as a Very-Low Income Tenant(s). 3. Number of apartment unit assigned: ____ Bedroom size: ____ _ Rent:$ _____ _ 4. This apartment unit (was/was n ot) 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 l ist who was given priority? Yes:___ No: ___ _ Manager Date 12853,0018\2043447v3 .doc Page 7 of 18 369 i INCOME CALCULATION WORKSHEET Include all household income for all persons over 18 years of age. Written verification of all income must be included. Gross Net 1099 Public Social Pension Unemp loy Military Alimony Family Applican t Wages Incom e Income Assistance Security men! Pay and/or Supp. 1 2 3 4 & Salaries• from 1040 d isability or C hild (r egular g ift (YTD as of: (self workers Support fro m \ employed) compensat person not ion pay living in unit) [®TOTAL INCOME [ $ •includes overtime pay, com missions, fees, l ips, and bonuses. Does not incl ude a mounts r eceived as reimbursem ents of m edical costs or insurance payments. ASSET CALCULATION All income earned on assets in excess of $5,000 must be included as household income. Wri tten ver ification must be included. If written verification is not avail ab le for savings, the current passbook savings rate as determ ined by HUD may be used. Real Property• Stocks Other .. $ _________ _ $. _________ _ $. _________ _ l]fil TOTAL AS SET INCOME Savings Bonds [s $ __________ _ $ __________ _ ·includes rental income or equity if not rented only. Equity is the difference between the market value of the property and th e total dollar amount of any loans secured by the property. .. Does not include the personal property i.e ., furniture or automobiles. I TOTAL HOUSEHOLD INCOME {A+ BJ [$ 12853-0018\204344 7113.dcx: Page 8 of 18 370 I NCOME VE RI FI CATION {FOR EMPLOYED PERSO N S) The undersigned emp loyee has applied for a rental unit located in a project f inanced under the Mu ltifam ily Revenue Bond Program for persons of low and very low income. Every income statement of a prospect ive tenant must be stringently verified. P lease indicate be low the employee's current annual i ncome from wages, overt ime, bonuses, com m iss ions or any other form of co mpensation received on a regu lar basis . E M PLOYER Annual Overtime Bonuses Commi ssio ns Wages Current Base Pav (G ross) Other Inco me Avg. Tota l Hours Worked Weekly T otal C u rre nt In come. _______ _ Yea r-to-Date I ncome. _______ _ I Pay Period: [) Weekly I [ ) B i-weekly I [ j Monthly I [ ) Other Do you anticipate an i ncrease i n the base pay over the next 12 months? D Yes D No If so, please indicate the amount of anticipated increase $ _____ per ___ _ start date: ___ _ NOTE TO E MPLO YER : This form is an esti mate of anticipat ed earnings solely for the pu rpose of determ ining income status. This fo rm does not consti tute a promise by the e mployer to the employee of g u aranteed wages, bonuses or ra ises. I hereby certify that the st atements above a re true and complete to the best of my knowledge. Date Employer Signature Title Employer's Address Emplo ye r's Ph on e Number APPLICANT 12853-0018\204344 7v3.doe Page 9 of 18 371 hereby grant you perm1ss1on to d isclose my income to ______________ in order that they may determine my income eligibi lity for rental of an apartment lo cated in their project which has been f i nanced under the Mu ltifamily Revenue Bond Program. Date Print Name (Res ident) Please send to: (Management Co. or Owner) 12853-0018\2043447v3,doc Signature (Resident) Page 10 of 18 372 I NCO ME VE RIFICATI O N (fo r s elf-e mploy e d p ersons) I hereby attach cop ies of my individual fede ral and state i ncome tax returns for the immed iately preceding calendar year and certif y that the information shown in such income t ax returns is true and comp lete to the best of my knowledge. Signature Date 12853 ,0018\2043447v3 .doc Page 11 of18 373 IN COME VERIFICATION (for Social Securi ty recipi ents) TO: SOCIAL SECURITY ADMINISTRATION Ladies and Gentlemen: I have appl ied for a renta l un it located in a project financed under th e _____________ Multifam ily Housing Program fo r persons of very low income: Every income statement of a prospect ive tenant must be stringently ve rified. In con nection with my app lication for a rental un it, I hereby authorize the Department of Socia l Services to release to __________________ the spec ific in format ion requested below: Date : ____________________________ _ Signature: __________________________ _ Social Security No.: _________ _ Name (Print): ____________ _ Address(Print) _______________________ _ Monthly Benefits Began/Will Begin: Socia l Security Benefit Amount: $ _____________________ _ Other Benefit(s): ________ _ Amount:$ __________ _ Medicare Deduct ions: $ __________ _ Are benefits expected to change?[ J Yes I J No If yes, please state date and amount: Date: __________ of change Amount$ ________ _ Page 12 of 18 12853·00 18\2043447113 .doc 374 If rec ipient is not receivi ng full benefit amount; please ind icate reason and date rec ipient will st art rece iving full benefi t amount: Re ason: Date of Resumption: Amount:. _______________ _ Date: S ignature: Title : Please send fo rm to : 12853-00 18\204344 7v3.doc Page 13 o f 18 375 INCOME VERIFICATION (for Department Social Services recipients) TO: CALIFORN IA 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 perso ns of very low income. Every i ncome statement of a prospective tenant must be stringently verified. In connection with my application for a renta l unit, I hereby authorize the Department of Socia l 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 sou rce: _________________ _ (d) Is other income in cluded in total budget? D Yes D No 3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCa l, Etc .): ____ _ 4. If recip ient is not receiving full grant, please indicate reason: [ ] Overpayment due to client's fa ilure to report other income [ ] Computation error [ Other: _________________________ _ 12853-00 18\20434 4 7v3 .dOC Page 14 of 18 376 Date when full grant will resume: ____________________ _ Date: ______________ _ Case Worker's Signature: _________ _ Telephone: ___________ _ District Office: -------------- You r very early response will be appreciated. Please return form to: 12853-001812043447v3.doc Page 15 of 18 377 DE C LARATION OF NO INCOME As managing agents for ____________________ _ (Name of Development) assisted by the Low Income Housing Program, we are required to verify all i ncome . To comply with this requ i rement, we ask your cooperat ion in supply ing the inform~tion requested in the Certification below. This information will be held in strict confidence and used only for the purpose of establishing eligibility. CERTIFICATION Name of Management Company By: Name and T itle I, _____________ , do hereby certify that I do NOT receive income fro m ANY source. I understand sources of income incl ude, but are not limited to the following: E mployment Study Pensions Unemployment Self Employment General Assistance Compensation AFDC Disability Social Security SSI Union Benefits Workers Compensation Retirement Funds Family Support Child Support Alimony Annuities Education Grants/Work Income from Assets I understand that should I become gainfully employed or begin receiving i ncome 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 st atements herei n. I also understand that false statements or omiss ions are grounds for disqualificat ion and/or prosecution under the full extent of Cal ifornia law. Signature Date W itness Signature Date Page 16 of 18 12853-0018\2043447v3.d oc 378 Support Verification Sou rce's Ma iling Address: ________ _ Phone#: _________ _ Fax#: __________ _ Recipient: Fede ral law requ ires that we verify the annual income of all persons applying for adm issions to or living in a community that offers affordable housing. This commun ity operates under the guidelines of Section 42 of the Internal Revenue Code. To comp ly with these requ irements, we ask your cooperatio n in supplyi ng the information requested be low regarding the above refe re nced individua ls. This information will be used only for determination of el ig ibility and/or rent computation . You will notice a release of information is autho ri zed by the applicanVtenant's signature below. Your assistance in completing thi s form accurately and timely is greatly appreciated! Applicant/Tenant Release Statement App licanVT enant Name: I hereby au thorize the release of the following inform ation in order to determine my elig ibil ity for the Bond Program. Please complete th e form in full and return i t to the MANAGEMENT COMPANY at your ea rliest convenience . Signature: _________________ _ Soc i al Security#: ______ _ Page 17 of 18 12853·0018\2043447V3 .doc 379 Please complete the following . If the mon ies are based on a percentage of the payor's income, please indicate the average amount per period. T vne of Benefit Amount Freauencv I I Child Support ( ) weekly ( ) monthly ( ) yearly I l Fami ly Support ( ) weekly ( ) monthly ( ) vearlv I l A limony ( ) weekly ( ) monthly ( ) vearlv I ) Other ( ) weekly ( ) monthly ( ) -yearly (Please l ist tvoe) Are monies paid to offset an AFDC grant ? [ ) Yes [ No Do you anticipate any changes in the next 12 months? [ ) Yes I ) No Comments: ------------------------- Signature of Source: ·--------------SSN#: _______ _ Date Completed Form: ____________ _ Page 18 of 18 12853-0018\2043447113 .doc 380 EXH IBIT NO. 4 TO AFFORDAB LE HOUS ING AGREEMENT CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE FOR THE [MONTH/QUARTER] E N DING __ _ The unde rsigned , ____________ , as the authorized representative of ___________ (t he "Affordable Housing Owner"), has read and i s thorough ly fa m ilia r with the provisions of the Affordable Housing Agreement by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the C ity of Moorpark (the "City"), dated as of ________ , 2017 . As of the date of th i s Certificate, the following numbers of comp leted res idential Units in the Project (i) are occupied, or (i i) are currently vacant and being held available for such occupancy and have been so held continuously since the date a Very Low Income Tenant or Low Income Tenant vacated such Unit, as indicated : Occupied by Very Lo w Income Tenants Number of Units: ------------- Occupied by Low Income Tenants Nu mber of Units: ------------- Occupied by Moderate Income Tenants Number of Units: Held vacant for occupancy cont inuously since last occupied by Very Low Income Tenants and Low Income Tenants: Vacant Units Number: _________ _ Occup ied Units Number: ---------- Very Low Income Tenants and Low Income Tenants who commenced occupancy of Units during the preceding [month/quarter): Very Low Income: Units Nos.: _______________________ _ Page 1 of 2 12853-0018\2043447"3.ooc 381 Low Income: Units Nos. ------------------------ Moderate Income: Number of Units : Attached is a separate sheet (the "Bond Program Report'') l ist ing, among other items , the following information for each apartment Unit in the Project: the number of each apartment Unit, the occupants of each Un it, the rental pa id for each Unit and the size and number of bedrooms of each Unit. It also ind icates wh ich Units are occupied by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants and which Units became Low Inco me Unit s and Very Low Income Units and Moderate In come Tenants during the preceding [month/quarter]. The information contained thereon is true and accurate. The undersigned hereby certifies that ( 1) a review of the activities of the Owner and Affordable Housing Owner during such [month/quarter] and of Owner's and the Affordab le Housi ng Owner's performance under the Affordable Housing Agreement among Owner, Affordable Housing Owner and the City, has been made under the supervision of the unders igned; and (2) to the best of the knowledge of the undersigned , based on the review described i n clause (1) hereof, the neither the Owner nor the Affordable Housing Owner is in default under any of the terms and provisions of the above documents [or describe the nature of any default in detail and set forth the measures be ing taken to re medy such default: ______________ _ _____________ .) 128~-00 18\204344 7v3 .doe Page 2 of 2 382 EXHIBIT NO. 5 TO AFFORDABLE HOUSING AGREEMENT INITIAL LOCATION OF STORM/WATE R DETENTION BASIN ON CITY PROPERTY (Attached.) 12853-00181204344 7v3.doe 383 l ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ' ;-.. ----' ' ' --·--- 11~ II _, 384