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HomeMy WebLinkAboutAGENDA REPORT 2023 0215 CCSA REG ITEM 08BCITY OF MOORPARK, CALIFORNIA City Council Meeting of February 15, 2023 ACTION APPROVED STAFF RECOMMENDATION, INCLUDING INTRODUCTION OF ORDINANCE NO. 511. (ROLL CALL VOTE: UNANIMOUS) BY A. Hurtado. B. Consider an Ordinance Approving the Third Amendment to the Development Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark Owner, L.P., and Making a Determination of Exemption Pursuant to the California Environmental Quality Act in Connection Therewithin, on the Application of Dan Johnson of Danco Communities (on behalf of Essex Moorpark Owner L.P.). Planning Commission Recommendation: 1) Open the public hearing, accept public testimony, and close the public hearing; and 2) Introduce Ordinance No. 511 approving the Third Amendment to Development Agreement between the City of Moorpark and Essex Moorpark Owner L.P. for first reading, waive full reading, and place this ordinance on the agenda for March 1, 2023, for purposes of providing second reading and adoption of the ordinance. (Staff: Shanna Farley, Principal Planner) (ROLL CALL VOTE REQUIRED) Item: 8.B. Item: 8.B. MOORPARK CITY COUNCIL AGENDA REPORT TO: Honorable City Council FROM: Shanna Farley, Principal Planner DATE: 02/15/2023 Regular Meeting SUBJECT: Consider an Ordinance Approving the Third Amendment to the Development Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark Owner, L.P., and Making a Determination of Exemption Pursuant to the California Environmental Quality Act in Connection Therewithin, on the Application of Dan Johnson of Danco Communities (on behalf of Essex Moorpark Owner, L.P.) PROJECT DESCRIPTION AND BACKGROUND On December 27, 2022, Dan Johnson (Applicant), for Danco Communities (on behalf of Essex Moorpark Owner L.P.), submitted a request for a Third Amendment to the terms of a Development Agreement (DA) between the City of Moorpark (City) and Essex Moorpark Owner, L.P. (Essex), related to a previously approved 200-unit multi-family apartment project located at 150 Casey Road, referred to now as Vendra Gardens. The Applicant has requested a Third Amendment (Attachment 1, Exhibit A) to revise the dates outlined in Section 2 of the Second Amendment to June 30, 2023, and to update the dates outlined in the development schedule. This request is 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 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 269 Honorable City Council 02/15/2023 Regular Meeting Page 2 No. 490 approving the First Amendment to the DA (Attachment 3). The request included: changing the approved-residential project to be fully affordable; and finance certain City development impact fees in the form of a 55-year residual loan. On September 19, 2022, an application for a second amendment to the DA was filed by Danco Communities, on behalf of Essex Moorpark Owner L.P. The request included: change to the income-restricted rental rates used in the Affordable Housing Agreement, change to the income-restricted unit mix, extension of the requirements of Section 2 of the First Amended DA from October 29, 2022, to December 31, 2022, correction of the description of the City Site to be conveyed to the City as part of the Project, addition of an exhibit showing the form and content of the “Offsite Improvement Performance and Payment Bond”, and modification of the timing and description of the onsite utility undergrounding. On November 2, 2022, the City Council adopted Ordinance No. 509 approving the Second Amendment to the DA and an Amended and Restated Affordable Housing Agreement (Attachment 4). On December 27, 2022, Danco Communities filed a subsequent application, on behalf of Essex Moorpark Owner L.P., to request this Third Amendment to the DA. This request includes an extension of the timeline outlined in Section 2 of the First DA to extend to no later than June 30, 2023, described in more detail below (Attachment 1, Exhibit A). On January 24, 2023, the Planning Commission considered the request for the Third Amendment to the DA and conducted a public hearing to consider the request. The Planning Commission received a presentation from staff and no public comments were made. Following deliberation, the Planning Commission unanimously voted to adopt Resolution No. PC-2023-689 (Attachment 5) recommending the City Council consider an ordinance approving the requested amendments to the DA. DISCUSSION Danco Communities is in escrow to acquire the property and Project from Essex Moorpark Owner L.P. The applicant has requested additional time to complete the purchase. Various aspects of the purchase agreement and the preparation of the project plans and revisions has required additional time on the part of the applicant to complete the sales transaction. Although the applicant intends to complete the sale in the spring of 2023, allowing a deadline of no later than June 30, 2023, provides additional time to complete tasks outlined below. The proposed amendments include: a) Change Section 2 of the Second Amendment to the DA to extend the December 31, 2022, date set forth therein to June 30, 2023, to complete the following: (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 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"); 270 Honorable City Council 02/15/2023 Regular Meeting Page 3 (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 Affordable Housing Owner to City of the City Site. b) Delete Exhibit “C” to the Second Amendment and replace in its entirety with Exhibit “B” to this Third Amendment to address the updated development schedule. (Attachment 1). The Applicant has also submitted building and grading plans for at-risk permit review to receive initial comments and achieve various deadlines related to funding requirements. The plans include minor changes to architecture and site plans of the Project to be considered by the Community Development Director. Should more comprehensive changes be proposed, such revisions may warrant future consideration by the Planning Commission and City Council. General Plan Consistency The General Plan land use designation of the Project site is Very High Density Residential (VH). The VH land use designation is intended for residential development characterized by multi-family attached units, including apartment and condominium buildings. It is intended that this category utilize innovative site planning, provide on-site recreational amenities, and be near major community facilities, business centers and major arterials. The land use designation of VH allows a maximum density of 15 dwelling units per acre; however, through negotiation of the DA, the Project was approved at a gross density of 18.9 dwelling units per acre with the provision of affordable housing. The proposed amendments to the DA would not change the density of the approved project. The amendments to the Development Agreement for the approved Project are consistent with the existing General Plan land use designation. In addition, the Project remains consistent with the General Plan goals and policies identified below: Housing Element Goals and Policies • GOAL 2: Provide residential sites through land use, zoning and specific plan designations to provide a range of housing opportunities. Policy 2.2: Ensure residential sites have appropriate public services, facilities, circulation, and other needed infrastructure to support development. • GOAL 3: Expand and protect housing opportunities for lower income households and special needs groups. Policy 3.4: Require, in aggregate, 10% of new units to be affordable to lower income households. Establishing priority for usage of in-lieu fee is as follows: 1st priority – production of affordable housing; 2nd priority – subsidy of affordable housing; 3rd priority – housing rehabilitation; 4th priority – housing assistance; and 271 Honorable City Council 02/15/2023 Regular Meeting Page 4 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 the State Department of Housing and Community Development. 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 do not present any additional environmental impacts. Therefore, the Project remains consistent with the previously-adopted MND and no further environmental documentation is required. PUBLIC NOTICE Public Notice for this meeting was given consistent with Chapter 17.44.070 of the Zoning Ordinance as follows: 272 Honorable City Council 02/15/2023 Regular Meeting Page 5 1. Publication. The notice of the public hearing was published in the Ventura County Star on February 3, 2023. 2. Mailing. The notice of the public hearing was mailed on February 3, 2023, to owners of real property, as identified on the latest adjusted Ventura County Tax Assessor Roles, within one-thousand (1,000) feet of the exterior boundaries of the assessor’s parcel(s) subject to the hearing. 3. Sign. One 32 square-foot sign was placed on the street frontage on February 3, 2023. PROCESSING TIME LIMITS Time limits have been established for the processing of development projects under the Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the Subdivision Map Act (Government Code Title 7, Division 2), and the California Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13, and California Code of Regulations, Title 14, Chapter 3). However, because the subject application includes a legislative action to amend a Development Agreement, it is not subject to the provisions of the Permit Streamlining Act. FISCAL IMPACT There are no fiscal impacts associated with this request. COUNCIL GOAL COMPLIANCE This action is consistent with Goal 1 of the City Council Goals and Objectives – “Identify Options and Solutions to Barriers for Housing for All Economic and Age Ranges.” PLANNING COMMISSION RECOMMENDATION (ROLL CALL VOTE REQUIRED) 1. Open the public hearing, accept public testimony, and close the public hearing; and 2. Introduce Ordinance No.___ approving the Third Amendment to Development Agreement between the City of Moorpark and Essex Moorpark Owner L.P. for first reading, waive full reading, and place this ordinance on the agenda for March 1, 2023, for purposes of providing second reading and adoption of the ordinance. Attachment 1: Draft Ordinance No. 2023-___ Exhibit A: Third Amendment to Development Agreement No. 2012-03 Attachment 2: Development Agreement No. 2012-03 Attachment 3: First Amendment to Development Agreement No. 2012-03 Attachment 4: Second Amendment to Development Agreement No. 2012-03 Attachment 5: Planning Commission Resolution No. PC-2023-689 (Exhibits excluded are included as part of Attachment 1) 273 ORDINANCE NO. ___ AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA, APPROVING THE THIRD AMENDMENT TO DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P., AND MAKING A DETERMINATION OF EXEMPTION PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT IN CONNECTION THEREWITH WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State Planning and Zoning Law provides that cities may enter into contractual obligations known as Development Agreements with persons having equitable interest in real property for development of that property; and WHEREAS, on July 18, 2007, the City Council adopted Resolution No. 2007-2611, adopting a Mitigated Negative Declaration, and approving General Plan Amendment No. 2004-05 for a change of land use designation from Specific Plan 9 (SP-9) – School Overlay to Very High Density Residential (VH); and WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public hearing and adopted Resolution No. 2017-3582 approving Residential Planned Development Permit No. 2012-02 for the construction of a 200-unit apartment complex and associated site improvements on approximately 11.66 acres located at 150 Casey Road, and adopted a Mitigated Negative Declaration from a previous project, Residential Planned Development Permit No. 2012-02; and WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443, approving Development Agreement (DA) No. 2012-03 by and between the City of Moorpark and Essex Moorpark Owner, L.P., in association with Residential Planned Development Permit No. 2012-02; and WHEREAS, on June 7, 2021, an application was filed to amend the terms of the Development Agreement between the City of the Moorpark and Essex Moorpark Owner, L.P.; and WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490 approving the First Amendment to Development Agreement No. 2012-03; and WHEREAS, on September 19, 2022, an application was filed to amend the terms of the Development Agreement between the City of the Moorpark and Essex Moorpark Owner, L.P.; and WHEREAS, on November 2, 2022, the City Council adopted Ordinance No. 509 approving the Second Amendment to Development Agreement No. 2012-03; and ATTACHMENT 1 274 Ordinance No. ___ Page 2 WHEREAS, on December 27, 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, on January 24, 2023, the Planning Commission adopted Resolution No. PC-2023-689 recommending that the City Council approve the Third Amendment to the Development Agreement No. 2012-03; and WHEREAS, at a duly noticed public hearing on February 15, 2023 the City Council considered the Third Amendment to the DA, and public testimony related thereto; and WHEREAS, the City Council has considered all points of public testimony relevant to the Third Amendment to the Development Agreement and has given careful consideration to the content of the Third Amendment to the DA, and has reached a decision on the matter; and WHEREAS, the Community Development Director has determined that this project, as amended, is consistent with the environmental determination that was previously-approved for Residential Planned Development Permit No. 2012-02. Therefore, no further environmental documentation is required. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. ENVIRONMENTAL DOCUMENTATION: The City Council concurs with the Community Development Director that the Third Amendment to the Development Agreement is consistent with the Mitigated Negative Declaration adopted for Residential Planned Development Permit No. 2012-02. SECTION 2. The City Council of the City of Moorpark does hereby find as follows: A. The provisions of the Third Amendment to the Development Agreement are consistent with the General Plan in that it will help achieve the goals of the Land Use Element and Housing Element and is consistent with the goals and policies of all other elements. B. The provisions of the Third Amendment to the Development Agreement and the assurances that said agreement places upon the project are consistent with the provisions of Chapter 15.40 of the Moorpark Municipal Code because the Development Agreement, First Amendment, and Second Amendment contain the elements required by Section 15.40.030 and shall be processed through a duly-noticed public hearing process as required by law. 275 Ordinance No. ___ Page 3 SECTION 3. The City Council hereby adopts the Third Amendment to the Development Agreement attached hereto and incorporated herein (Exhibit A) between the City of Moorpark, a municipal corporation, and Essex Moorpark Owner, L.P. and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 4. If any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 5. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 6. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a written record of the passage and adoption thereof in the minutes of the proceedings of the City Council at which the same is passed and adopted; and shall publish notice of adoption in the manner required by law. PASSED, AND ADOPTED this __ day of ___________, 2023. Chris R. Enegren, Mayor ATTEST: Ky Spangler, City Clerk Exhibit A – Third Amendment to Development Agreement with Attachments 276 12853-0092\2770146v1.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 THIRD AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P. EXHIBIT A 277 -1- 12853-0092\2770146v1.doc THIRD AMENDMENT TO DEVELOPMENT AGREEMENT This THIRD AMENDMENT TO DEVELOPMENT AGREEMENT (“Third Amendment”) is dated as of ___________, 2023, 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, and as further amended by a Second Amendment of Development Agreement (“Second Amendment”) dated December 2, 2022 which was recorded on December 14, 2022 as Document No. 2022000115909 in such Official Records (as amended, the “DA”); and WHEREAS, Developer is the owner of real property within the City, more specifically described in Exhibit "A" attached hereto (referred to hereinafter as the "Property"); and WHEREAS, City and Developer desire to amend the DA to extend the date for satisfying certain conditions as set forth herein. NOW, THEREFORE, the parties hereby agree as follows: 1. Amendments. a. Section 2 of the Second Amendment is hereby amended to extend the December 31, 2022 date set forth therein to June 30, 2023; and b. Exhibit “C” to the Second Amendment is hereby deleted and replaced in its entirety with Exhibit “B” to this Third Amendment. 2. Reaffirmation. Except as specifically amended hereby, the DA is and shall remain in full force and effect; and to the extent that there are any inconsistencies between the provisions of this Third Amendment and the DA, the provisions hereof shall control. 3. Counterparts. This Third Amendment may be executed by the parties hereto in separate counterparts, and signatures delivered electronically, and each counterpart when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument. 278 -2- 12853-0092\2770146v1.doc IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. DEVELOPER: ESSEX MOORPARK OWNER, L.P. a California limited partnership By: Essex Moorpark GP, L.P. a California limited partnership Its: General Partner By: Essex Management Corporation a California corporation Its: General Partner By: _____________________ Name: _____________________ Title: _____________________ CITY: CITY OF MOORPARK, a municipal corporation By: Chris R. Enegren, Mayor ATTEST: Ky Spangler, City Clerk APPROVED AS TO FORM: By: Kevin G. Ennis, City Attorney 279 12853-0092\2770146v1.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) 280 12853-0092\2770146v1.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) 281 A-1 12853-0092\2770146v1.doc EXHIBIT “A” TO THIRD AMENDMENT TO DEVELOPMENT AGREEMENT LEGAL DESCRIPTION OF PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1: PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 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 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503- 0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. 282 A-2 12853-0092\2770146v1.doc EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V. BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL RECORDS. ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. PARCEL 2: PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 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°20'34" WEST 36.75 FEET; 283 A-3 12853-0092\2770146v1.doc 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V. BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL RECORDS. ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. APN: 511-0-020-26 5 AND 511-0-020-275 284 B-1 12853-0092\2770146v1.doc EXHIBIT “B” TO THIRD AMENDMENT TO DEVELOPMENT AGREEMENT DANCO SCHEDULE OF PERFORMANCE (DEADLINES) (Originally Exhibit F of First Amendment and Exhibit C of Second Amendment) Design Phase: Complete on or before March 30, 2023 Tax-Exempt Bond and Tax Credit Applications: March 16, 2022 Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022 Plan Check/Building Permits: March 1, 2023 Date property must be acquired by Affordable Housing Owner: June 30, 2023 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: June 30, 2023 Grading: To commence within 30 days after acquisition of property by Affordable Housing Owner or affiliate Construction: 36 months from commencement of grading Lease-Up: approximately three months following construction completion 285 , Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenu e Moorp ark, Cal ifo rnia 9302 1 EXEM PT FR OM RECORDER'S FEES Pursuant to Gove rnment Code § 6103 and§ 27383 DEVELOPMENT AGREE MENT by and between the CITY OF MOORPARK and ESSEX MOORPARK OWNER, L.P. HIIIIW/111111111111111/IIJmll I I! !fl 20170417-00050720-0 1/137 Ventura County Cl er k and Recorder 11MK A. l UNN 04/17/2017 0-2 :ZO :S.3 PN 1189866 $.00 VA ATTACHMENT 2 286 DEVELOPMENT AGREEMENT T his Development Agreement ("the Agreement") is made and entered into on April 17, 20 17, by and between the CITY OF MOORPARK, a munic ipal corporation (referred to hereinafter as "City") and ESSEX MOORPARK OWNER, L.P., the owner of real property within the City of Moorpark generally referred to as Residential Planned Development Perm it 20 12-02 (refe rred to here in after individually as "Developer") .. City and Developer are referred to hereinafter individually as "Party" and collectively as "Part ies." Capitalized terms used in this Agreement but not defined herei n shall have the meanings. given such, term s in the Affordable Housing Agreement (defined in Section 1.5 hereof). In consideration of the mutua l covenants and agreements conta ined in this Agreement, City and Develope r agree as follows: 1. Recita ls. Thi s · Agreement is made with respect to the following facts and for the following purposes, each of wh ich is acknowledged as true and correct by the Parties: 1.1 Pursuant to Government Code Section 65864 et seq. and Moo rp ark Munic ipa l Code Chapter 15.40, City is autho rized to ente r i nto a binding contractual agreement with any person having a legal or equitable interest in rea l property within its boundaries for the development of such property in o rder to establish certa inty in the development process. 1.2 Developer is the owner in fee simple of certain real property in the City of Moorpark, as more spec ifically described by the legal .description set forth in Exhib it A, which e xhi bit is attached hereto and i ncorporated herein by this reference (the "Property"). 1.3 Prio r to, and in connect ion with , the app roval of this Agreement, the City Counc i l reviewed the project to be developed pursuant to this Agreement as requ ired by the California Environmental Quality Act ("CEQA") The City Counc il found that the Mitig ated Negative Dec laration ("MND") and Mitigation Monitoring and Reporting Program ("the MMRP") adopted by Resolut ion No. 2007-2611 to be applicable to this Agreement and the Project Approva ls as defined in Sectio n 1.4 of this Agreement and that no change·s or new information within the scope of State CEQA Guidel ines Sect ion 15162 requ i res the preparation of a new ·or subsequent envi ronmental document in connecti on with the approva l of this Agreement. 1.4 General Plan Amendment No . 2004-05 ("GPA 2004-0 5"), Zone Change No. 2004-04 ("ZC 2004-04"), and Residential Planned Development Perm it No. 2012-02 ("RPO 2012-02"), inc lud ing all subsequently approved mod ifications and perm it adjustments to RPO 2012-02 and all amendments thereto (collecti ve ly "the Pro ject Approvals"; individ ually "a Proj ect Approval") provide for the development of the Property with a 200 - 287 unit residential apartment comp lex and the construction of certain off-site improvements in connect ion therewith ("the Project"). 1.5 The Project shall include at least fifty (50) Affordable Units rented to individuals and families whose incomes do not exceed those specified by the Affordable Housing Agreement executed by the Developer in favor of the City contempo raneously with this Agreement (the "Affordable Housing Agreement") at rents no greater than those set forth in the Affo rd able Housing Agreement (the "Affordable Units"). The Project shall be restricted and encumbered by the Affordable Housing Agreement. The City and Developer acknowledge and agree that the Deve loper may apply for, qualify, develop and finance the Project in a manner that qualifies for tax exempt bond fi nancing and federal low income housing tax credits. For that purpose, the Developer may seek City approval for an air ri ghts subdivis ion of the Project into separate parcels so that the parce ls containing the 16 Very Low Income Units and the 24 Low Income Units requ ired by the Affordable Housing Agreement can be conveyed to and owned by one owner separate from the ownership of the oth er renta l Un its in the Pro ject, but the Very Low Income Units and the Low Income Un its can not be sold to or owned by multiple owners (i.e., the Very Low Income Units and the Low Income Units must be owned by a single owner at all times, except that the owner of market rate Units may also own ten (10) Moderate Income Units which will be rented as Low Income Units unti l the last to end of the Compliance Period and Extended Use Period or Qualified Project Pe riod). It is ant icipated that if tax exempt bond financ ing and low income housin g tax credits are used in connection with the Project the Very Low Income Units, the Low Income Units and the Moderate Units will be rented and occup ied in acco rdance w ith the restrictions set forth in the Affordab le Housing Agreement. 1.6 City and Develope r ac kno wledge and agree that the previous Development Agreement No. 2004-03 fo r the Property, approved by the City Council on July 18, 2007 by Ordinance No. 355, did not take effect and was not recorded because the Developer did not execute it. City and Deve loper also ac kn owledge and agree that by the e nabl ing ordinance approving this new Agreement, the City's previous approval of Development Ag ree ment No. 2004-0 3 pursuant to Ordinance No. 355 is resc ind ed and that resc iss ion will take effect upon the date the enabling ord ina nce fo r th is Agreement under Government Code Section 36937 ("Enabling Ordinance") beco mes effective ("Operative Date"). 1. 7 City and Developer acknowledge and agree that the approva l of Resident ial Planned Development Pe rm it No. 200 4-06 for the Property, approved by the City Counci l on July 18, 2007 by Resolution No. 2007- 2612, exp i red due to lack of Project inauguration by Develope r. -2- 12853-001812044326v1 .doc 288 2. 3 . 1.8 By thi~ Agreement, City desires to obta in the b inding agreement of Deve lope r to develop the Property in accordance with the Project Approvals and th is Ag reement. In cons ide ration thereof, City agrees to li mit the futu re exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1.9 By this Agreement , Developer desi res to obtain the binding agreement of City to permi t the deve lopment of the Property in accordance with the Proj ect Approva l s and this Agreement. In cons ideration the reof, Deve loper agrees to wa ive its rights to legally challenge the l im itat ions and cond itions imposed upon the development of the Property pu rsuant to the Project Approva ls and this Agreement and to provide the public benefits and improvements specified in th is Agreement. 1.10 City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Ag reement is fair, just and reasonable a nd that this Agreement is consistent with the General Plan of City, as currently amended. 1.11 On June 4, 2013, the Planning Comm iss io n commenced a duly noticed public hearing on this Agreement , and at the conclusion of the hearing on June 4, 2013 recommended approva l of th is Agreement. 1.12 O n March 1, 2017 , the City Council of City ("City Counc il") commenced a duly not iced publ ic hearing on th is Ag reement, and following the conclusion of the hearing app roved the Agreement by adoption of Ord inance No. 443 ("t he Enabling Ordi nance") on March 15, 2017. Property Subject To This Agree m ent. All of the Property shall be subject to th is Agreement. The Property may also be referred to hereinafter as "the site" or "the Project". · Binding Effect. The burdens of th is Agreement are bin ding upon, and the benefits of the Agreement inure to, each Party and each success ive successor in interest the reto (subj ect to Section 3.4 be low) and constitute covenants that r un with the Property. Whenever the terms "City" and "Developer" are used herein, such terms sh.all include every successive successor i n interest thereto . 3 .1 Constructive Notice and Acceptance . Every pe rson who acquires any r ight, tit le or interest in or to any portion of the Property sha ll be conclusively deemed to have consented and agreed to be bound by th is Agreement , whether or not any reference to the Agreement is conta ined in the instrume nt by wh ich such pe rson acquired such right , title or interest, subject to Section 3.4 below. 3.2 Conveyance of Very Low Income Unit s and Low Income Units. Upon reco rdation of a n app roved fina l map under Sect ion 7.1 below creat ing .3. 12853,0018/2044326v1 .doc 289 lega l air rights parcels for th e Property and delivery of reasonable evidence to the City Manager showing that the transferee is partly owned (directly or indirectly) and is controlled (d i rect ly or indirectly) by Developer, Deve loper may convey the subdiv ided port ion of the Property contain ing such Very Low Income and Low Income Un its to a single ent ity so owned and so controlled by Deve loper (the "Affordable Housin g Owner") subject to the Affordable Housing Agreement between C ity and Developer, and this Agreement shall inure to the benefit of and be binding upon the Affordable Housing Owner. Deve loper and Affordable Housing Owner shall not convey fee title to such Very Low Income Un its or the Low Income Un its to any other person or entity. Developer shall reimburse City within ten (10) days after written demand (with an explanation of the costs) for all costs incurred by City in evaluating the conveya nce to the Affordable Housing Owner and any subsequent perm itted conveyance by the Affordable Hous ing Owner. 3.3 No Other Separate Conveyance of Very Low Income Units and Low Income Units. After the initia l conveyance by Deve loper to Affordable Housing Owner of Very Low Income Un its and Low Income Units, Developer and th e Affordable Housing Owner and their successors in interest shall not convey their respect ive portions of the Property sepa rately, but shall only convey them concurrently and to the same purchaser, only to a purchaser reasonably approved in writing by City (wh ich will cons ider the reputation and experience of the purchaser in owning and operating affordable rental units). As a condition to the initial conveyance by Developer to Affordable Housing Owne r of Very Low Income Un its and Low Income Units, Developer and Affordable Housing Owner shall execute, acknowledge and record (i) a separate agreement (i.e., a covenant and agreement to hold property as one parcel} imposing the forego i ng restriction on the Property, which shall be subject to the written approval of City, and (ii) "condit ions, covenants and restrict ions" for the Affordable Units and th e remainder of the Project ("CC&R's"), which shall also be subject to the written approval of City. Such separate agreement and GG&R's shall be sen ior to any and all deeds of trust and other liens (except property taxes and assessments not yet due). 3.4 Release Upon Subsequent Transfe r. Upon the sale or transfer of Developer's and Affo rdable Housing Owner's i nterests in the Property to a single purchaser (or any such purchaser or subsequent purchaser's sale of the entire Property), Developer and Affordab le Housing Owner, or any such subsequent pu rchaser (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 th is Agreement at the time of the sa le or transfer, and (ii) prior to the sale or tra nsfe r , delivered to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary publ ic , whereby the purchaser exp ress ly assumes the obligations -4- 12853-00 181204 4 326v1 .rloc 290 under this Agreement with respect to the Property. Failure to provide a written assumption agreement hereunder shall not negate , modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise provided in this Agreement. 4 . Development of the Property. The following provi sions shall govern the subdivision , development and use of the Property. 5. 4 .1 Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited 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 limited to density or intensity of use and maximum height and size of buildings, that shall be app licab le to the Property are set forth i n the Project Approva ls and this Agreement. 4.3 Building Standards. All construct ion 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 ilding 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 publ ic purposes that are applicable to the Property are set forth in the Project Approva ls and this Agreement. Vesting of Development Rights. 5.1 Timing of Development. Developer shall comply with the Schedule of Performance attached hereto as Schedule 1, subject to Excused Delays (as defined in Section 10) and as amended from time to time and approved in writing by the City Council. No future amendment of any existi ng City ordinance or resolut ion , or future adoption of any ord inance, resolution or other action, that pu rports to limit the rate or tim ing of development over time or alter 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 acco rdance with the Project Approvals and this Agreement. Nothing in th is section shall be construed to limit City's r ight to ensure that Deve loper timely provides all i nfrastructure requ ired by the Project Approvals , Subsequent Approvals , and this Agreement. 12853·0018\2044326v 1 .doc -5-291 5.2 Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall app ly to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3 Issuance of Subsequent Approvals. Applications for land use approva l s, entitlements and permits , i nc luding without l imitation subdivision maps (!t..9.. tentative , vesting tentative, parcel, vesting parcel , and final maps), subdivision im provement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits , use permits, design review approvals (e.g . site plans, architectural plans and landscaping plans), encroachment permits , and sewer and water connections that are necessary to or desirable for the development of the Project ( collectivel y "the Subsequent Approva ls"; individually "a Subsequent Approval") shall be consistent with the Project Approvals and thi s Agreement. For purposes of this Agreement, Subsequent Approva ls do not include building permits. Subsequent Approvals shall be governed by the Project Approva ls and by the applicable provisions of the Moorpark General Plan , the Moorpark Municipal Code and other City ordinances, resolutions , rules, regu lations , pol ic ies, standards and requirements as most recent ly adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approva l is deemed complete by City (collectively "City Laws"), except City Laws that: (a) change any permitted or conditionally perm itted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduct ion in the number of proposed buildings or other improvements from what is allowed by the Project Approvals. (c) limit or control the rate, ti mi ng, phas ing or sequencing of the approval , development or construct ion of all or any part of the Pro ject in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Property covered by the Subsequent Approval is in place or is schedu led to be in place prior to completion of construct ion; (d) are not un iformly applied on a City-wide basis to all substantially simi lar types of development projects or to all propert ies with similar land use designations; ( e) control residential rents; 12853-0018\2044326v1 .doc -6-292 6. (f) proh ibit or regulate development on slopes with g rades greater than 20 percent, inc l ud ing withou t lim itation Moorpark Municipal Code Chapter 17 .38 or any succes~or thereto, within the Property; or (g) modi fy the land use from what is permitted by the City's Genera l Plan Land Use Element at the Operat ive Date of th is Agreement or that proh ibits or restricts the establishment or expansion of urban services including but not limi ted to commun ity sewer systems to the Project. 5.4 [INTENTIONALLY OMITTED] 5.5 Mod ification of Approvals. Throu ghou t the term of this Agreement, Deve loper shall have the right , at its election and without ri sk to or waiver of any right that is vested in it pursuant to this sect io n , to apply to City fo r modifications to Project App rova ls and Subsequent Approvals . The app roval or conditiona l approval of any such modifi catio n shall not require an amendment to th is Agreement, provided that, in addition to any other find ing s that may be requ ired in order to approve or cond itionally approve the modification, a finding is made that the modification is consistent wi th this Agreement and does not a lter the permitted uses, density, intensity, max imum height, size of buildings or reservatio ns and dedications as conta ined in the Project Approvals. 5.6 Issuance of Building Permits. No Build ing Permit shall be unreasonably withhe ld or delayed from Developer. In addit ion, no Final Building Permit final inspection o r Certificate of Occupancy will be unreasonably withheld or delayed from Deve loper if all infrastructure requ ired by the Project Approva ls, Subsequent Approvals, and this Agreement to serve the portion of the Property covered by the Fi nal Bui lding Perm it is in place or is schedu led to be in place prior to completion of construction and all of the other re levant provis io ns of the Project Approvals , Subsequent App rovals and this Agreement have been satisfie d. Consistent with section 5.1 of th i s Agreement, in no event shall build ing permits be allocated on any annua l numerical basis o r on any arbitrary allocation bas i s. Developer Agreements. Note: Certain fees payable by Deve lopment under this Section 6 are also set forth and cross-referenced on Schedu le 2 attached hereto. 6.1 Deve lopment as a Residential Project. Developer shall co mply with (i) this Agreement, (ii) the Project Approvals , (iii ) all Subsequent Approvals for wh ich ii was the applicant or a successor in interest to the applicant and (iv) the MMRP of th e MND and any subsequent o r supp lemental environmenta l actions. Developer agrees not to app ly for any non- resident ial uses on the Property. The clubhouse and leasing offices are cons idered to be part of the residential uses. -7 - 12853,00 18\2044326v1 .doc 293 6.2 Condit ion of Dedicated or Conveyed Property. All lands and interests in land dedicated to City shall be free and clea r of liens and encumbrances other than easements or rest rictions that do not prec lude or interfere with use of the land or interest for 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 boundaries of the Property, Deve loper shall pay Cit y 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 di scretion. The amount of the Deve lopment Fee shall be Eight Thousand Fo ur Hundred Dolla rs ($8,400.00) pe r res idential unit. If not pa id by January 1, 2019, the fee shall be adjusted 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 rea u of Labo r Stat istics, for all urban consume rs within the Los Angeles /Riverside/Orange County metropo litan area during the prior yea r. The ca lculat ion shall be made us ing the month of Octobe r over the prior October. (b) The ca lcu lat ion 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 annua l index ing, the Deve lopment Fee shall remain at its then current amount until such time as the next subsequent annual index ing 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 T raffic Fee"). The Citywide Traffic Fee may be ex pended by Cit y in its 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 resident ial unit. If not paid by January 1, 2019, then on January 1, 2019, and annually the reafter unti l pa id, the contri but ion a mount 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 annual i ndexing, 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- 1285~0018\2044326v1.d<x; 294 6.5 [INTENT IONALLY OMITTED.] 6.6 Process i ng Fees . On the Operat ive Date (defined in Section 1.6 above), Developer shall pay all outstanding City process ing costs related to preparation of this Agreement, the Project Approva ls, the MND. 6. 7 Park Fees. Prior to the issuance of the bui ld ing permit for each res ident ial dwelling unit within the Property, Developer shall pay a one-time fee in lieu of the ded ication of park land and related improvements ("Park Fee"). The amount of the Park Fee shall be Eight Thousand Four Hundred Dollars ($8,400.00) for each residential dwelling un it within the Property. If the Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted annually commenc ing January 1, 2019 by the larger increase of a) or b) 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 consumers within the Los Ange les/R iverside/Orange County metropolitan area during the prior year. The calculat ion shall be made using the month of October over 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 iforn ia Const ruction Ite ms for the twelve (12) mo nth period ava ilable 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 an nual index ing wh ich results in an increase. Developer agrees that the above-desc ri bed payments shall be deemed to sat isfy the parkland dedication requ irement 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 park land dedication requirements, a public trail through the Property shall not be required. 6.8 [I NTENTIONA LLY OMITT ED.] 6 .9 Densities Allowed fo r Deve lopment. Developer agrees that dens ities vested and i ncentives and concess ions rece ived in the Project Approvals include all densi ties ava ilable as density bonuses and all incentives and concessions to which Developer is entitled under the Moorpark Municipal Code, Government Code Sect ions 659 15 th rough 659 17 .5 or both; Developer shall not be entitled to further density bonuses or incentives or concess ions and further agrees, in cons ideration for the dens ity bonus -9- 12853-0018\2044326"1 .doc 295 obta ined through the Project Approva ls that is greater than wou ld otherwise be available, to : (i) execute, acknow ledge 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 are incorpo rated here in by reference , during the term of this Agreement ( after which the Affordable Housing Agreement shall remain in effect fo r its stated term). Residentia l Planned Development Permit No. 2012-02, inc luding the special conditions that i ncorporate and inc l ude all of the requi rements set forth in the Affordable Housing Agreement are part of the Project conditions of approva l and not merely cont ractual in nature. 6.10 Affordable Unit Priority Leasing. Developer agrees to the greatest extent permitted by state and federal law to grant priority to the Affordab le Units to e ligible City of Moorpark res idents to the extent it does not (i) jeopardize Deve loper's rights pursuant to this Agreement or the Project Approvals, or (ii) jeopardize or materially affect any City-issued bond financ in g fo r the Project obtained by Developer. 6.11 Bond Issuance Costs . In the event City issues bonds to provide any financing for the Project, Deve loper shall pay an in itial issuer fee to City of Fifty Thousand Dollars ($50,000.00). The fee shall be paid upon funding of the City-issued bond financing. Deve loper agrees that City may at its so le discret ion select the bond counsel, financ ial adviso r and other professional service providers deemed necessary and appropriate by Deve lo per that City deems necessary to effectuate City-issu ed bo nd financing. Developer further agrees to fund all costs actually incurred by City in connection with such City-issued bond financing by providing City with depos its fo r all such bond financing related costs not cont in gent on the sale of bonds. In add ition, Developer will pay for all city attorney and city staff time at appl icable rates. W ith the exception of city staff costs, all other costs including, but not li mited to out of pocket and professional services costs shall have City overhead expense of fifteen percent (15%) added to said costs. If the City does not act as the issuer of bonds, the City shall coope rate i n good fa ith with the issuance of bonds for the Project by others, inc luding, but not limited to , holding a TEFRA hearing at a ti me reasonably approved by the City Manager; however, Developer shall reimburse City with in 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 ove rhead 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 for the Project by others, upon the fund ing of the bond financi ng; in addition , any costs incu rred by City in -10- 12853-0018\2044326"1.doc 296 connection with such cooperation shall be reimbursed /paid by Developer in accordance with the preceding provi sions of this parag raph . 6.12 Air Quality Fees. Deve loper agrees that the Mitigation Measures included in the City Counci l approved MND and MMRP , or subsequent env ironmental c learance document approved by the Council, set forth the mitigation requirements for a ir qua lity impacts. Deve loper agrees to pay to City a one -time (not annual) air qual ity mitigation fee, as described herein ("A ir Quality Fee "), in satisfaction of the Transportation Demand Management Fund mitigation requirement for the Project. The Air Qual ity Fee may be expended by Ci ty in its sole discretion for reduction of regiona l air pollution emissions and to mitigate residua l Project air qual ity impacts. The Air Quality Fee shall be One Thousand Two Hundred Thirty and No/100 Dollars ($1,230.00) per resident ial unit to be pa id prior to the issuance of the building perm it for the first residentia l building in RPO 2012-02. If the Air Quality Fee is not paid by January 1, 2019, then commenc ing on January 1, 2019, and annually thereafter, the Air Qual ity Fee shall be adj usted by any increase in the Consu mer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S . Department of Labor, Bureau of Labor Statistics, for all urban consumers with in the Los Ange les/R iverside/Orange County metropolitan area during the prior year . The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annua l indexi ng, 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 Clearance for the first building permit or the approval of any final map for the Project: (a) Deve loper shall pay the City a Five T housand 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 D istrict conta ining two zones (one zone to be fully funded and the othe r 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 fund ing future costs fo r the ma intenance landscaping and irrigation of the landscaped area above the retain ing 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, wh i chever is app licable, 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 emerge ncy access dri ve. It shall be the -11 - 12853-0018\2044326v1.doc 297 intent of the City to approve the required assessment each year, but to only levy that portion of the assessment necessary to recover any past City costs or any anticipated City costs for the that fiscal year. The City shall administer the annual renewal of the Assessment D istrict or Districts, and any costs related to such administration shall be charged to the fund established for such Assessment Di strict revenues and expenses. Developer agrees to cast affirmative ballots for the establishment of both Assessment Districts, or both zones of the one District, as appl icable, and for annual increases in the assessments thereunder, for the purposes specified in this subsection. Developer hereby waives any right it may have to contest or protest any such assessments or assessment incre ases. In the event that any such Assessment District has insufficient funds for its purposes, then Developer shall pay the funds requ ired to the Assessment D istrict within five (5) business days afte r written demand from the Assessment District from time to ti me. Developer also agrees to add this language to any Regulatory Ag reement as part of the sale of any bonds issued by the City for thi s Project. 6.14 Other Development and Processing Fees. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be pa id. Said fees include but are not l imited to Library Faci lities Fees, Police Facilities Fees, Fire Facili ties Fees, drainage, entitlement processing fees, and plan check and perm it fees for bu ildi ngs and public improvements. Developer furthe r agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the Operative Date of th is Agreement and such future fees i mposed as determined by City in its sole discretion so long as such fees are imposed on projects s imilar to the Project or on property similar to the Property. · 6.15 AOC Fees. If paid prio r to January 1, 2020, Deve loper shall pay the Los Angeles Avenue Area of Contributio n (AOC) fee in effect at the time of project approval for each re sidential un it in a bu ilding prior to the i ssuance of the bu ilding permit for that res idential buildi ng within the Project, consistent with City Resolut ion No. 2014-3336. If paid on or after January 1, 2020, Deve loper shall pay the Los Angeles Avenue Area of Contribution (AOC) fee in effect at the time of build in g permit issuance. Developer shall pay the Gabbert Road/Casey Road Area of Contrib utio n fees , if any, in effect at the ti me of building permit issuance for each residential unit in a building prior to the issuance of the bui lding permit for that residentia l build in g within the Project. 6.16 Street Improvement Standards. The street improvements for all streets schedu led fo r dedication to the City shall be des igned and constructed by Developer to provide for a 50-year life as determined by the City Engineer. -12- 12853-00 1812044326v 1 .doc 298 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 Developer e xpressly waives the right to payment of any such fees under protest pursuant to Cali forn ia Governmen t Code Section 66020 and statutes amenda tory or supplementary thereto. Deve loper furthe r agrees th at the fees it has agreed to pay pursuant to Section 6.3 of th is Agreement a re not pub li c i mprovement fees collected pursuant to Government Code Section 66006 and statutes amend atory 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 prov ision amendatory or supplementary thereto for annual review of th is Agreement and further agrees that the annual review shall inc lud e evaluat ion of its compl iance with the approved MND and MMRP. 6 .19 Art in Publ ic Places Fee. Developer agrees to pay the Art in Publ ic Places Fee i n effect at the time of build ing pe rmit i ssuance for each bui lding prior to the issuance of the building perm it for that residential building within the Project consistent w ith City Resolut ion No . 2005-2408 {1 .0 percent of total build ing valuations e xclud ing land value and off-site improvement costs). 6.20 Eminent Doma i n. Developer agrees that any e lection to acquire property by em inent domain shall be at City's sole di scretion, and only after compliance with all legally requ ired procedures including but not limited to a hearing on a proposed resolution of necess ity. 6.21 [IN TENTIONALLY OMITTED] 6.22 CPI Indexes. In the event the "CPI " referred to in Sections 6.3, 6. 7 or 6.12 above or Sections 6 .24 o r 7.18 below, or the "refe renced Index" referred to in Sectio n 6.4 above are d iscontinued or revised , a successor index with wh ich the "CPI " and or "referenced Index" are replaced shall be used i n 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: Ut ility and Construction Easements. The Developer agrees to convey to City the site (here inafter re ferred to as the "City Site") as shown in Exhibit "B" pursuant t o the Pu rchase and Sale Agreement attached he reto as Exhibit "C" (the "Purchase and Sale Agreeme nt") subject to the utility easement described in Ex hib it "G ". Deve loper shall execute and del iver the Purchase and Sa le Agreement concurre ntly wi th its execution and de livery 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- 12853-0018\2044.J26v 1 .doc 299 If at any ti me the City Manager determines that a const ruct ion easement fo r the City is necessary within the slope on the southerly fifteen ( 15) feet of the Property for purposes of improving the C ity Site and City Manager requests such an easement in writing, then Develope r shall grant a construction easement to City which shall expire five (5) years after the last Certificate of Occupancy is issued (and the C ity Manager is hereby authorized to execute a Cert ificate of Acceptance for such easement). 6.24 Flood Control Channel Imp rovements and Property Line Improvements. Developer agrees to enclose the flood control channel located on the eastern portion of the Project as shown on the approved Project Sit e Plan to connect to the enclosed portion of the channel on the City Site to the satisfaction of the City Engineer/Public Works Director and the Ventura County Watershed Protection District. Developer shall be responsible for any aesthetic or landscape imp rovements over and around the channel as required by Ventura County Watershed Protection D istrict and as part of the Project Approvals. Deve loper further agrees to construct retaining walls (made of slumpstone, not precis ion blocks) with a color approved by the Community Development Director in good faith and landscapi ng along the southerly property line as shown on the Project Site Plan as approved and conditioned by the City Counci l Resolution approving Residential Planned Develop ment Permit No. 20 12-02 to the satisfaction of the Community Development Director. 6.25 High Street Improvement s. Deve loper agrees, prior to issuance of t he first building permit for the first residential building, within the Project to improve High Street within it s existing right-of-way from its intersection with Moorpark Avenue up to the point of the temporary fire access to the extent requi red by Ventura County F ire Department, and the City Engineer in accordance with the approved S ite P lan for the Project, for emergency secondary access to the Project. In no event shall Developer be required to acquire any property in order to fulfill this obligation . 6.26 Power Pole Relocation Costs and Fees. Per the Real Property Acqu isit ion Agreement between City and Essex app roved by the City Council on March 18, 2009 , City paid for a private ut ility consultant (BJ Palmer & Assoc iates) to redesign (Revised Plan) the Ed ison 66kV Essex Pole Relocation Plan (Essex Plan) in order to plan for the relocation of the exist ing poles. The Real Property Acquisition Agreement also called for C ity to pay for installation of any poles or guy poles requ ired in addition to those shown on the Essex Plan. Deve loper had agreed to pay for the relocation of the existing 66 KV overhead power li nes as shown on the Essex Plan under the Real Property Acqu isition Agreement. Developer now ag rees that the relocation of the existing po les as shown in the Rev ised Plan contained in Exhib it "D" does not requ ire any additional poles or guy poles from those shown on the Essex Plan , and that City is not obligated to pay any furthe r costs under the Rea l Property Acqu isition -14- 12853-001812044326v1 .doc 300 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 resident ial build ing , to be used by Cit y 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. 6.27 Requ ired Tenant and Guest Park ing. Deve loper agrees to provide a tota l of at least 2.00 parking spaces per unit on site. Two pa rking 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- bedroom un its , with the remainde r of the spaces ava ilable for guest park ing. At least one of the parking spaces des ignated and reserved for each of the units shall be in a ga rage o r covered carport. There shall be no extra charges for requ ired parking for any units (whether o r not they are Affordable Units). Deve loper shall only be required to prov ide ninety- four (94) guest parking spaces . 6 .28 [INTENTIONALLY OMITTED) 6.29 Restoration of City Site. Prior to the i ssua nce of a grad ing penmit by City for the Property, Developer shall provide reasonable evidence satisfactory to the City Eng ineer/Pub li c 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, 2017; such amount shall be the maximum amount of d i rt that may be removed 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 construction related dirt and all other construction material deposited or stockpiled by Develope r to the satisfaction of the City E ngineer and Commun ity Development Director. The elevation of the City Site must be restored to the level prio r to the Deve loper'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 stonm water quality basin, which shall be at the e levations required by the Project Approva ls) to the satisfaction of the City Engineer/Publ ic Works Di rector and the Com m unity Deve lopment Director. 6.30 [IN TENTIONA LLY OMITTED] 6.31 Prior Development Agreement and Residential Planned Development Perm it. Developer agrees that the previous Development Agreement No. 2004 -03 fo r the Property, approved by the City Council on July 18, 2007 by Ord inance No. 355, did not take effect and was not reco rded because the Developer di d not execute it. Deve loper further ag rees that by the enabl ing ordinance approving this new Agreement, the City's previous approva l of Development Agre ement No. 2004-03 pu rsuant to Ordinance -15- 12853,0018\2044326\/1 .dO<: 301 No. 355 is resc inded and that rescIss1on will take effect upon the Operative Date. Developer further agrees that the approval of Residential P lanned Development Permit No. 2004-06 for the Property, approved by the City Council on July 18, 2007 by Resolution No . 2007-2612 , had expi red due to lack of Project inauguration by Developer. 6.32 [INTENTIONALLY OMITTED] 6.33 [INTENTIONALLY OM ITTED] 6.34 City Abi lity to Modify. Developer acknowl edges 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 expirat ion of this Agreement (if the Project has not been built), and Deve loper hereby waives any rights they might otherwise have to seek judicial review of such City actions to change the development standards, General Plan designation and zoning to those development standards and density of permitted development to that in existence prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04"). 6.35 Annual Community Services Fee. Commencing upon issuance of a Zoni ng Clearance by the City for occupancy of the fi rst unit of the Project, and on each anniversary thereof, Affordable Housing Owner shall pay to City a community services fee equal to Eight Thousand Dollars ($8,000.00) increased by two percent (2%) on each anniversary of the Operative Date. (This fee is the same fee as is included in the Affordable Housing Agreement.) 6.36 Indemnity. Developer will defend, indemnify and hold City harmless from and against any and all c laims, liabi lities, losses, damages, costs and expenses arising from any activity by Developer or its contractors on the C ity Site. 6.37 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 agrees that all of the obligations of the City under that certain Real Property Acquisition Agreement dated March 31, 2009 (the "Portfolio Agreement") between the C ity and Essex Portfolio, L.P. have been satisfied. Developer shall defend, indemnify and hold City harmless from and against any and all cla i ms by Essex Portfolio, L.P.: (i) that the foregoing is not correct; or (i i) under or with respect to the Portfolio Agreement. 6 .39 Well Si te Deed. Concurrently w ith its execution and del ivery to City of this Agreement, Developer shall execute , cause to be duly acknowledged and -16- 12853-0018\2044326v1 .doc 302 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 reasonab le time and resources of City staff to work with Deve loper on the expedited and paralle l processing of appl ica ti ons for Project Approvals and all Subsequent Approvals and Building Permits for the Project area and if requested in writi ng by Developer shall use overtim e and independent contractors whenever possible . City shall process an air r ights subd ivis io n 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 appl ication 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 ti me 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 Acqu isitions. 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 Deve loper 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, apprai sal fees , eng i nee ri ng fees , City staff costs, and City overhead expenses of fifteen percent (15%) on all out-of-pocket costs. 7.3 [INTENT IONALLY OMITTED] 7.4 Concurrent Entitlement Processing. City agrees that wheneve r possible as determined by City in its sole discretion to process concurrently all land use entitlements fo r the Project so long as the appl ication for such entitlements are "deemed complete" in compliance with the requi rements of Chapter 4.5 Review and approval of Development Projects (Permit Streamlining Act) of the California Government Code. 7.5 Park Fees . City agrees that the Park Fee requi red under Section 6 .7 of this Agreement meets all of Developer's obligation for park land dedication provis ions of state law and City codes . -1 7- 12853-00 t8\2044326vt .doc 303 7.6 [INTENTIONALLY OMITTED] 7.7 Reimburs e m ents from other Developments. City shall faci litate the reimbursement to Developer of any costs i ncurred by Developer that may be subject t o partial reim bursement from other developers as a condition of approva l of a tract map, development penmit o r development agreement with one or more other developers and at City's discretion may in clude provisions requ i ring such re imbursement to Developer for the same i n such other development p roject conditions of approval. 7.8 [INTENTIONALLY OMITTED] 7.9 Acquisition by City of City S ite. Provided Developer shall have duly executed and delivered the Purchase and Sale Agreement to City, City sh all enter into the Purchase and Sale Agreement to acquire the C ity Site. 7.10 Developer/City Use of City Site for Stockpiling Dirt. Developer may reasonably stockpile co n st ru ction dirt and materials on the City S ite during construction of the Project, subject to Section 6.29. Upon execution of the Purchase Agreement, Developer shall grant an easement t o City pursuant to the Easement Agreement in the fomn and substance attached as Exhibit "C" to the Purchase Agreement pursuant to which C ity shall h ave access to the (approximately) two (2) acres of the City Site on the southeastern portion of the City S ite, adjacent to the existing High Street improvements and otherwise at a location reasonably acceptable to City more particularly described in the Easement Agreement, on which the City may stockpile dirt p rior to the conveyance of the C ity S ite to the City, and i n connection therewith, City shall comply with Section 2.2 of the Purchase and Sale Agreement and the Easement Agreement. The City agrees to fence the approxi mately two (2) acre site to separate it from the balance of the City Site. Prior to issuance of the first b u ild i ng permit for the Property, the portion of the City S ite used by Developer under the first sentence of this Section 7.10 shall be restored by Developer to a reasonab le condition, free of Developer's construction debris, p i les of dirt and all other construction-related material deposited o r stockpiled by Developer, and to its elevation level that exi sted prior to Developer's stockpiling of d irt a nd material, all to the satisfaction of the City Engineer/Public Works Director and Community Development Director. 7.11 Parking Requirements for Tenants and Guests. The parki ng req ui rements shall be as set forth in Section 6.27 above. 7.12 Art in Public Places Fee. City agrees that the Art in Public Places Fee required under Section 6.19 of this Agreement meets all of Developer's obligation for Art in Public P laces provisions of City codes and resolutions. -18- 1285J-0018\2044326v 1.doc 304 7.13 Bond Financ ing. Cit y acknowledges Developer may want to use City- i ssued bond financing for the Proj ect. If City, at its so le and absolute d iscretion, authorizes such bond financing, then City agrees to use good fa ith efforts to accommodate any request by Deve lo per for an inducement resolution allowing the use by Developer of City-issued bond financing for the Project . City shall also comp ly with its obligations under Sect ion 6.11 above. 7.14 [INTENT IONALLY OMITTED) 7.15 Grant Fund ing Assistance. City shall use good faith efforts, at no cost to City, to assist Developer in obtai ning public grants, loans, or other pub l ic assistance from pub lic agencies othe r than the City, including, but not li mited to Metrolink, but only if assisti ng Developer i n obtain ing such funds does not directly or indirectly financially bu rd en City. 7 .16 [IN TENTIO NAL LY OMITTE D) 7.17 Power Pole Relocation. City agrees to accept re location of the Ed ison 66kV power poles on City Property cons istent with the Revised Plan discussed in Section 6.26 and attached hereto as Exhibit "D ". 7.1 8 Storm Water/Flood Detention Basin. City agrees that Deve loper may use the storm water/flood detention basin located on the City Property and de picted on Exhi bit "H" for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Developer to that affect; however, City may elect by written notice to Developer to relocate said detention basin and any service road and secondary access road located on the City Property at any time, and Developer shall reimburse or pay City for the costs of such relocation with i n ten (10) business days after written demand from City from time to ti me describing such costs. Developer shall promptly provide a bond acceptable to City in the amount of such costs, as projected in good faith by City, to ensure payment of the costs, and every two (2) years the amount of the bond shall be increased (by amendment or by a replacement bond) by the percentage increase over the app licab le two year period in the Caltrans Highway Bid Price Index for Sel ected Ca lifornia Construction Items, as determined in good faith by the City Manager. 7 .19 Extens ion of High Street. City agrees that Developer shall not be requ i red to make any improvements related to the extension of High Street except as necessary to meet Ventura County Fire Protection District requ irements fo r the provis ion of secondary emergency access to the Property. 7.20 Prior Deve lopment Ag reement and Residential P lanned Development Perm it. City agrees that the previous Development Agreement No. 2004- 03 for the Property, approved by the City Council on July 18 , 2007 by -19- 12853-0018\2044326v 1 .doc 305 Ord inance No. 355, never was executed , as Deve loper never had signed the previous Deve lopment Agreement No. 2004-03 , and that the enabling ord inance fo r previous Deve lopment Agreement No. 2004-03 (Ord inance No. 355) is rescinded upon the Operative Date. City further agrees that the app roval of Residential Planned Deve lopment Permit 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 lac k of Project inauguration by Deve loper. 8 . Supersession of Agreement by Change of Law . In the event that any state or federa l law or regulation e nacted after the date the Enabling Ordinance was adopted by the City Counc i l prevents or precludes compl iance with any provis io n of the Ag ree ment, such provision shall be deemed mod ified or suspended to comp ly with such state or federa l law or regulat ion, as reasonab ly determi ned necessary by City . 9. Demonstration of Good Faith Compliance . In order to ascertain co mpliance by Developer with the provisions of thi s Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of th is Agreement by City, dim inish, i mpede, or abrogate the obligations of Deve loper hereunder or rende r this Agreement invalid o r void. At the sa me time as the referenced annual review, City shall also review Deve loper's compliance with the MMRP. 10. Autho ri zed Delays. Performance by any Party of its obligations hereunder, other than payment of fees , shall be excused during any period of "Excusab le Delay", as here in after defined, provided that the Party claiming the delay gives written notice of the delay to the other Part ies as soon as possible after the same has been ascertained. Fo r purposes hereof, Excusab le Delay shall mean delay that d i rectly affects, and is beyond the rea sonable control of, the Party clai ming th e delay, inc luding without limitat ion: (a) act of God ; (b) civil commotion; (c) riot; (d) strike, picket i ng or other labor dispute; (e) shortage of materia ls or suppl ies ; (f) damage to work in progress by reason of fi re, flood, earthquake or 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 example only, the lack of water to serve any port ion of the Property due to drought; (h) delay caused by a delay by othe r third party ent ities wh ich are requ ired to approve plans or documents for Develope r to construct the Project, o r restrictions imposed or mandated by such ot her third party entities or governmental entiti es other than City, (includ i ng but not limited to , Ventura County Watershed Protection District); or (i) litigation brought by a third party attacking the validity of th is Agreement, a Project Approva l, a Subsequent Approval or any other act ion necessary fo r deve lopment of the Project . -20- I 2853,0018\2044326v 1 .doc 306 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 deceit upon City; o r wi llfully violates any order, ru ling or decision of any regulatory or judicial body having j uris diction over the Property or the Project, provided that Develope r may contest any such order, ruling or decision by app rop riate proceeding s conducted in good faith, in whic h event no breach of this Agreement shall be deemed to have occurred unless and until the re i s a fina l 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 Develope r that the same is due and payable; or (c) breaches any of the other provis ions of this Agreement and fai ls to cure the same within thirty (30) days after City gives written not ice t o Deve loper of such breach (or, if the breach is not able to be cured wi thin such thirty (30) day period, Develope r fails to start to cure the same with i n th irty (30) days after delivery of written notice by City of such breach or fails 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 to be cured within such thirty (30) day period, City fails to start to cure the same within thirty (30) days after delivery of written notice from Developer of such breach or fails to thereafte r diligentl y prosecute the cure to completion). 11.3 Content of Notice of Violation. Eve ry notice of breac h shall state with spec ificity that it is given pursuant to this sect ion of th is Agreement, the nature of the alleged breach, and the manne r in wh ich the breach may be satisfactori ly cured. Every not ice shall state the appl icab le period 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 Ag ree ment that may be avai lable under applicable law. Additionally, the Parti es acknow ledge that remed ies at law, including without lim itation monetary damages, wou ld be inadequate for breach of this Agreement by any Party due to the size , nature and scope of the Project. The Parties also acknowledge that it would not be feasible or -21- 12853-00 1812044326v1 .doc 307 possib le to restore the Property to its natu ral condition once implementation of this Ag reement has begun . Consequently, the remedies for breach of th is Ag reement by e ither party shall inc lude injunctive re lief a nd/or specific performance. In addition, if Developer is i n default under this Agreement , City shall have the ri ght to withhold the issuance of building perm its to Developer from the date that the notice of violation was given pursuant to Section 11.3 hereof until the date that the breach is cu red as prov ided in the noti ce of violation. 12 . Mortgage Protection. If City g ives notice to Developer of a breach, City shall send a copy of the notice to each ho lder of record of any deed of trust on the portion of the Property in wh ich Developer has a lega l interest ("Financier"), provided that the Financier has g i ven prior written notice of its name and mailing address to City and the not ice makes specific reference to th is section. The copies shall be sent by United States mail, registered or certified , postage prepaid, ret urn rece ipt requested, and shall be deemed received upon the third (3rd) day after depos it. Each Financie r that has given prior not ice to City pursuant to this section shall have the right, at its option and insofar as th e rights of City are concerned, to cure any such breach within eighteen (18) days afte r the giving of the notice by City. If such breach cannot be cured within such time period, the Financier shall have such add iti onal period as may be reasonab ly required to cu re the same, provided that the Fin anc ier gives notice to City of its intention to cu re and commences the cure within eighteen {18) days after giving of the not ice by City and thereafter diligently prosecutes the same to comp let ion. City shall not commence legal action against Develope r by reaso n of Developer's breach without allowing the Financie r t o cure the same as specified herein. Notwithstanding any cure by Fin ancier, this Agree ment shall be binding and effective against the Financie r and every owner of the Property, or part thereof, whose title theret o is acquired by forec losu re, trustee sale or otherwise; provided , however, Financier and such owner shall not be respo nsible fo r any matters that occurred prio r to th eir acquisition of the Project. 13. Estoppel Cert ificate. At any time and from time to time , Deve loper may de liver written notice to City and City may deliver w ri tten notice to Deve loper requesting that such Party certify in writing that, to the knowledge of the cert ifying Party, (i) th i s Agreement is in full force and effect and a binding obligatio n of the Parties, (ii) this Agreement has not been amended, o r if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach , a descript ion of each such breach. The Party receivi ng such a request shall execute and return the cert ificate withi n ten (10) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the cert ificate and by -22- 12853-00 1812044326v 1.doc 308 holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any consent or approval herein to be given by the City may be given by the City Manager provided it is express and is in writing . Any decision by City staff concerning the interpretation and admin istrat ion of th i s Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appea l shall be filed with the City Clerk of City with in ten (10) days after the affected Developer rece ives written notice of the staff decision. The City Counc il shall render its decision to affirm, reverse or modify the staff dec ision within thirty (30) days after the appeal was fi led. The Deve loper shall not seek judicial review of any staff decision without first having exhausted its remed ies pursuant to th is sect ion. 15. Amendment or Termination by Mutual Consent. In accordance w ith the provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect, this Ag reement may be amended or terminated, in whole or i n part, by mutua l consent of City and the affected Developer. 15.1 Exemption for Amendments of Project Approvals. No amendment to a Project Approval or Subsequent Approvals shall require an amendment to th is Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement and does not a lter the perm itted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approva ls or Subsequent Approvals. 16. Developer Indemnification. Deve loper shall indemnify, defend with counsel approved by City, and hold ha rml ess City and its officers, employees and agents from and aga inst any and all losses, liab il ities, fi nes, penalties, costs , cla im s, demands, damages, injuries or judgments aris i ng out of, or resu lting in any way from , Developer's performance pursuant to this Agreement. Developer shall indemn ify, defend with counsel approved by City, and ho ld harmless City and its officers, employees and agents from and against any action o r proceeding to attack, review, set aside, void or annu l this Agreement, or any provi sion thereof, or any Project App roval or Subsequent Approval o r modifications thereto, or any other subsequent entitlements fo r the project and includ ing any related environmenta l approva l. 17. Time of Essence. T ime is of the essence for each provision of this Agreement of which time is an element. -23- 12853-00 18\2044326v 1 .<loc 309 18. Operative Date. As described i n Section 1.6 above, Th is Agreement shall become operative on the Operative Date, be ing the dat e the Enabli ng Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remai n in full fo rce and effect for a term of seven (7) yea rs com mencing on the Operative Date or unti l one yea r after the issuance of the fina l building permit for occupancy of the last build ing of the Project wh ichever occurs last, unless sa id term i s amended or the Ag reement is sooner term inated as otherwi se provided herein. Notwithsta nding the foregoing, t he following shall survive the expiration or earlier termina tion of th i s Agreement: (i) all obl igations arising under this Agreemen t prior to the expiration or earl ier termination of th is Agreement; (ii) density, park ing and other physical aspects of the Project construct ion i n accordance with this Agreement , the Affordab le Hous ing Agreement, and RPO 2012 -02. Exp iration of the term or earlier te rmi nation of th is Agreement shall not automatically affect any Proj ect Approva l or Subsequent Approval or B uilding Permit o r Final Bui lding Perm it that has been granted or any r ight or obli gation arising independently from such Proj ect App roval o r Subsequent Approval or Bui lding Permit or Fi nal Bu i lding Pe rmit. Upon expiration of the term or ea rlier t ermi nation of th is Agreement, the Parties shall execute any document reasonably requested by any Party to remove th is Agreement fro m the pub lic reco rds as to the Property, and every portion the reof, to the extent permitted by appl icable laws. 20. Notices. All notices and other commun icat ions given pursuant t o this Ag reement shall be in writing and shall be d ee med received when personally delivered or upon the th ird (3rd) day after deposit in the Un ited Stat es mail, registered or certified , postage prepaid , return receipt requested , to the Part ies at the addresses set forth in Exhib it "D'' attached hereto and incorporated herei n. Any Party may, from ti me to time , by written notice to t he other, designate a different address whi ch shall be substituted for the one above spec ified. 21. Entire Agreement. This Ag reement and those exhib its and documents reference d herein cont ain the ent i re agreement between the Part ies regard ing the subject matter hereof, and all prior agreements o r understandi ngs, oral o r written , are hereby merged herein. This Agree ment shall not be amended , except as ex press ly provided herein. 22 . Waiver. No wa iver of any provision of this Agreement shall constitute a waiver of any othe r provis ion, whether or not similar; nor sha ll any such wa iver constitute a continuing or subsequent waiver of the sa me pro vision . No waiver shall be binding, unless it is executed in writing by a duly authorized rep resent ati ve of the Party aga inst whom enforcement of the wa i ve r i s sought. -2 4- 12853-0018\2044326v 1 .doc 310 23. Severab ility. If any provi sion of this Agreement is determined by a court of competent jurisdiction to be inval id or unenforceable, the remainder of th is Agreement shall be effective to the extent the remaining prov isions are not rendered impractical to perform, tak ing into consideration the purposes of this Agreement. 24. Re lat ionship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Noth i ng contained he rein o r in any document executed in connection herewi th shall be construed as creat i ng the relationship of partne rs , joint ventures or any other association of any kind or nature between City and Developer, jointly or severally . 25 . No Thi rd Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and the ir successors i n interest . No othe r person shall have any right of action based upon any provis ion of this Agreement. 26. Reco rdation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City with in the period required by Chapter 15.40 of the Moorpark Mun icipal Code of City o r any successor thereof then in effect. 27. Cooperat ion Between City and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the pu rposes of this Agreement. 28. Rules of Construct ion . The captions and head ings of the various sections and subsections of th is Agreeme nt are for convenience of reference only, and they shall not const itute a part of this Agreement for any other purpose or affect interpretat ion of the Agreement. Shou ld any provision of this Agreement be found to be in conflict with any provi sion of the Pu rchase and Sale Agreement, the Pro ject Approvals or the Subsequent Approvals , the provision of this Agreement shall prevai l. 29 . Joint Preparat ion. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 30. Governing Law and Venue. Th is Agreement is made, entered into, and executed in the County of Ventura, Ca lifornia, and the laws of the State of California shall govern its i nterpretation and enforcement. Any act ion, su it or proceed i ng related to , or arising from , this Agreement shall be filed in the appropriate court having jurisd icti on in the County of Ventura. 3 1. Attorneys' Fees. In the event any action, suit or proceed ing is brought for the enforcement or declarat ion of any right or obligation pursuant to, or as a result of any alleged breach of, this Ag reement, the prevai ling Party shall be entitled to its -25- 12853·00 1812044326v1 .doc 311 reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rende red in such action, suit or proceeding shall i nc lude an awa rd thereof. 32. Counterparts. This Agree ment may be executed i n multip le counte rparts, each of wh ich shall be deemed an original, but all of wh ich constitute one and the same instrument. IN WITNESS WHEREOF, Essex Moorpark Owner, L.P., and City of Moorpark have executed this Development Ag reement on the date first above wri tten . ESSEX MOORPARK OWNER, LP., a California lim ited partnership By: Essex Moo rp ark GP, L.P a Cal ifornia limited partnership, Its general partner By: Essex Management Corporation a Ca l ifornia corporation , its general partner By: Tit le : Print -26- 12853·0018\2044326v1 .doc C ITY OF MOORPARK 312 ACKNOWLEDGMENT A notary public or oth er officer comp leting this certificate verifies o nly the identity of the individua l who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validitv of tha t document. State of California County of San Mateo On April 11, 2017 before me. Sandi A. Cabral, Notary Public (i nsert name and titl e of the officer) personall y appeared _J_o_h_n_E_u_d....;y _____________________ _ who proved to me on the basis of sa tisfactory evidence to be the person(s) whose name(s) is/are subscribed to the with in 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 th e instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. W ITNESS my hand and official seal. 5.M .. ra )/= • fl , ~ (Seal) 313 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 certificate verifies only the identity of the individual who s igned the docum ent to which this certificate i s attached, and not the tru thfulness, accuracy, or validity of tha t document. PUBLIC AGENCY FORM OF ACKNOWLEDGMENT STATE OF CALIFORNIA } COUNTY OF VENTURA ) ss. CITY OF MOORPARK } On this 17th day of April in the year 2017 , before me , Maureen Benson, City Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basi s of satisfactory evidence to be the person whose name is subscribed to the within i nst rument and who is personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me tha t she exec uted the same i n 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 Ca l ifornia that the forego ing paragraph is true and correct. Witness my hand and Official Seal Maureen Benson C ity Clerk JAN ICE S. PARV IN Mayor ROSEANN MIKOS, Ph.D. Councilmcmber DAVID POLLOCK Councilmcmbcr KEN SIMONS Councilmcmbcr MARK VANDAM Cou ncilmcmbc r 314 EXH IBIT "A" LEGAL DESCRIPTI ON ALL of Parcel 213 of in that certain Lot L ine Ad ju stment No. 2005-04 i n the City of Moorpark, County of Ventura, State of California , recorded July 21 , 2005 as Document No. 200507210178764 or official records in the Office of t he County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho S i 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 Subd ivis ion of Part of Tract U and Addition to Moorpark, in the Rancho Si m i, Ventura county, California" in said C ity, County and State as shown on Map f i led in Book 5, Page 37 of said Miscellaneous Records (maps). T OGETHER WI TH that portion of Parcel IA of i n that certain Lot Line Adjustment No . 200503 in the City of Moorpark, County of Ventura, State of Californ ia, recorde d May 3, 2005 as Document No. 20050503-010831 5 o r officia l re cords in the Office of the County Recorder of said Count y, being a portion of Lot "T", Tract No. "L", Rancho S imi as per map filed in Book 5 Page 5 of Mi scellaneous Records (Maps) in th e Office of said County Recorder, lying northerly of the following described line; BEGINNING a t 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 Th ence, South 27°20'34West 36.75 feet; 3rd Thence, South 89°03'54"West 293. 78 feet to a point i n the west l ine of said Parcel 1A. 12853-0018\2044326v 1 .doc 315 EXHIBIT "B" LEGAL DESCRIPTION OF C ITY SITE All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503 -0108315 or official records in the Office of the County Recorder of said County, being a portio n of Lot "T", Tract No. "L", Rancho Simi as per map filed i n Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of sa id County Recorder. EXCEPT THEREFROM tha t portio n conveyed to the C ity of Moorpark by deed Ap ril 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; BEG INNING at a poi nt in east l in e of Parcel 1A of sa id Lot Li ne Adj ustment No. 2005- 03 , distant thereon North 292 .97 feet from the southeast erly corner thereof; 1s t Thence, departing sa id east line South 89 °38 '32"West 752.05 feet; 2nd Thence, South 27°20 '34West 36.75 feet; 3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A. 12853-0018\2044326v 1 .doc 316 EXHIBIT "C" FORM OF REAL ESTATE PURCHASE AGREEMENT (Attached.) 12853,00 18\2044326V1 .doc 317 AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS (this "Agreement") is dated as of _____ ~ 2017; and is entered int9 by and between the CITY OF MOORPARK ("Buyer"), and ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Seller"). Upon execution of this Agreement by Buyer; Buyer shall promptly deliver a copy of this executed Agreement to Seller. RECITALS A. Seller is the owner of the land described on Exhibit "A" and the improvements (if any) thereon ( collectively, the "Property"). B. Buyer desires to purchase the Property from Seller and Seller desires to sell the Property to Buyer. C. Buyer and Seller are parties to the certain Development Agreement dated ---.,..,----:-' 20 l 7 (the "Development Agreement") and this Agreement is being executed as a condition of and in accordance with the Development Agreement NOW, THEREFORE, in consideration o(the Independent Consideration set forth in Section 1.2.2 below, and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Buyer and Seller hereby agree as follows: SALE AND PURCHASE PRICE. 1.1 Sale and Purchase. Seller agrees to sell the Property to Buyer and Buyer agrees to purchase the Property upon the terms and conditions hereafter set forth. 1.2 Purchase Price. 1.2. l The purchase price ("Purchase Price") for the Property shall be One Dollar ($1.00). 1.2.2 Independent Consideration. Notwithstanding anything in this Agreement to the contrary, upon execution of this Agreement by Buyer, One Hundred and Noll 00 Dollars ($100.00) shall be delivered by Buyer to Escrow Agent.for delivery to Seller as non-refundable independent contract consideration (the "Independent Consideration"), w:hich is in addition to the Purchase Price, and which amount has been bargained for and agreed to as consideration for Seller's execution and delivery of this Agreement and for the rights and privileges granted to Buyer herein, including, without limitation, any and all rights granted to Buyer to terminate this Agreement during certain periods hereunder. If Buyer elects to terminate this Agreement for any reason other than Seller's default, Seller shall retain the Independent Consideration. The Independent Consideration shall not be applicable towards the Purchase Price. 318 2. TITLE. 2. I General. Title to the Property shall be conveyed by a grant deed in the form attached hereto as Exhibit "B" and shall be evidenced by a CLTA Standard Coverage Form of Owner's Policy of Title Insurance (or an AL TA Extended Coverage Form Policy, if Buyer elects such coverage as provided in Section 2.3 hereof) ("Title Policy"), and the extra C()St of any such ALTA coverage shall be bome by Seller as described in Section 4.9 below. The Title Policy shall be issued by First American Title Company, 1737 North First Street, Suite 500, San Jose, CA 95112, Title Officer: Michael D. Hickey ("Title Company''), with liability in the full amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of all liens and encumbrances and other matters affecting title to the Property , except the utility easement described in Section 6.23 of the Development Agreement (the "Utility Easement") and other title exceptions which Buyer has approved in writing (which shall constitute "Approved Title Exceptions") except that real property taxes and assessments shall be prorated. (Seller may claim a refund of property taxes in the event any property taxes paid are allocable to the period after the closing. Buyer, as a municipal corporation, is exempt from property taxes.) 2.2 Acts After Date of Agreement; City Access. During the period from the date ofthis Agreement through the Close of Escrow, except for the Utility Easement described in Section 2.1 above and the Access Easement described in this Section 2.2, Seller shall not record or pennit to be recorded any document or instrument re lating to the Property or physically alter the Property or pennit or cause to be altered without the prior written consent of the Buyer, which consent may be withheld in Buyer's sole and absolute discretion. Notwithstanding the foregoing, after the date of this Agreement and ending upon the conveyance of the Property to Buyer pursuant to this Agreement, Seller may use the Property for the storage of construction debris, the storage of construction related materials and supplies, and the deposit of dirt excavated or otherwise removed from the construction site on the Seller's property to the extent pennitted by Section 7. IO 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 particular I y 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. I Buyer acknowledges that Seller is making no representations or w~ties 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 319 law). Subject to the foregoing and Section 2.2, upon the Close of Escrow, Buyer shall talce title to the Property in its then current "AS IS" condition, subject to Seller's obligations under Section 6.29 of the Development Agreement. Notwithstanding California Civil Code Section I I 03.l(a)(9), Seller shall deliver to Buyer, with reasonable diligence after the execution of this Agreement and at Seller's cost, a Natural Hazard Disclosure Statement (described in California Civil Code Section I 103.2). 4. ESCROW. 4.1 Agreement to Constitute Escrow Instructions. This Agreement shall constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for that purpose. 4.2 Escrow Holder. Toe escrow shall be opened with First American Title Insurance Company, 2901 North Ventura Road, Suite 175, Ventura, CA 93036 ("Escrow Holder''), within five (5) business days after the execution of this Agreement by Buyer and Seller depositing an executed copy or executed counterparts of this Agreement with Escrow Holder. This document shalf be considered as the escrow instructions between the parties, with such further instructions as Escrow Holder requires in order to clarify the duties and responsibilities of Escrow Holder. 4.3 Close of Escrow. For the purposes of this Agreement, "Close of Escrow" shall be the date on which a grant deed for the Property in favor of Buyer is recorded in the · Official Records of the Ventura County Recorder's"Office. Provided all of Seller's and Buyer's obligations to be performed on or before Close of Escrow have been performed and all the conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow shall close on or before the date that is six (6) months after the date on which the final Certificate of Occupancy for the Project is issued ("Closing Date"). All risk of loss or damage with respect to the Property shall pass from Seller to Buyer at the Close of Escrow. Possession of the Property shall be delivered to Buyer upon the Close of Escrow. 4.4 Seller Required to Deliver. Before the Close of Escrow, Seller shall deposit into escrow the following: 4.4.l Intentionally omitted 4.4.2 A grant deed conveying the Property to Buyer, in the form attached hereto as Exhibit "B", duly executed by Seller and acknowledged (the "Grant Deed"); 4.4 .3 A California 593 certificate and federal non-foreign affidavit (with respect to Seller); 4.4.4 Any other documents reasonably required by Escrow Holder or the Title Company to be deposited by Buyer to carry out this escrow. 4.5 Buyer Required to Deliver. On or before the Close of Escrow, Buyer shall deposit into escrow the following (properly executed and acknowledged, if applicable): 320 4.5.J An executed and acknowledged "Certificate of Acceptance" in the fonn attached to the Grant Dell!i (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, whic.h are for Buyer's benefit and may be waived only by Buyer: 4.6 .1 The Building Department _of Buyer shall have issued a final Certificate of Occupancy for the Project described in the Development Agreement. 4.6.2 Seller shall have performed all agreements to be perfonned 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 Developme~t 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.nnioated, 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 ·depos ited by Seller in escrow and which are held by Escrow Holder on the date of the termination (less, in the case of the party otherwise entitled to such funds, however, the amount of any cancellation charges required to be paid by such party under Section 4.11 below). 4.7 Recordation of Grant Deed; Delivery of Funds and Possession. Upon receipt of the funds and instruments described in this Section 4, Escrow Holder shall cause the Grant Deed to be recorded in the office of the County Recorder of Ventura County, California. Thereafter, Escrow Holder shall deliver the proceeds of this escrow (less appropriate.charges) to Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all occupants. 4.8 Prorations. Property taices shall not be prorated as Buyer is exempt from property taices; Seller shall apply for a refund, if Seller has paid property taices that are allocable to the period after the Close of Escrow. Al l property assessments shall be prorated between 321 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 other closing costs or charges not expressly provided for herein shall be shared equally by the parties. 4.10 Brokers. Buyer and Seller represent to one another that no broker or finder has been engaged by it in connection with the transaction contemplated by this Agreement, or to its knowledge is in any way connected with such transaction. Each party covenants and agrees that any broker fee or commission, which may be due or payable in connection with the closing of the transaction contemplated by this Agreement through its dealings with that party, shall be borne solely by that party. Each party agrees to defend, indemnify and hold harmless the other party and its respective employees, agents, representatives, council members, attorneys, successors and assigns , from and against all claims of any agent, broker, finder or other similar party arising from or in connection with its activities relating to the sale of the Property to Buyer. . 4.11 Escrow Cancellation Charges. In the evenr that this escrow shall fail to close by reason of the default of either party hereunder, the defaulting party shall be liable for all escrow and title cancellation· charges. In the event that the escrow shall fail to close for any other reason, each party shall pay one-half (1/2) of all escrow and title cancellation charges. 5. 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 c~sts, reasonable attorneys' fees and reasonable fees of expert witnesses. 6 . NOTICES. All notices, requests, demands and other communication given or required to be given hereunder shall be in writing and ·sent by first class United States registered or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized courier service such as Federal Express, duly addressed to the parties as follows: To Seller: Essex Moorpark Owner, L.P. 1100 Park Place, Suite 200 San Mateo, CA 94403 Attention: John Eudy and Jordan Ritter And 322 To Buyer: Essex Moorpark Owner, L.P. 17541 Derian Avenue , Suite 110 Irvine, CA 92614 Attention: Bob Linder City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 Attention: City Manager Delivery of any notice or other communication hereunder shall be deemed made on the date indicated in the return receipt or cowier's records as the date of delivery or as the date of first attempted delivery, if sent by mail or cowier service. Any party may change its address for purposes of this Section by giving notice to 'the other party as herein provided. 7. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned by either party without the prior written consent of the other party. 8. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the parties hereto with respect to the matters contained herein, and all prior or contemporaneous agreements or understandings, oral or written, pertaining to any such matters are merged herein and shall not be effective for any purpose. No provision of this Agreement may be amended, supplemented or in any way modified except by an agreement in writing signed by the parties hereto or their respective successors in interest and expressly stating that it is an amendment of this .. Agreement. . • · 9. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument. 10. EMAIL DELIVERY. This executed Agreement (and executed counterparts of this Agreement), may be delivered by email. 11. TIME OF THE ESSENCE. Time is of the essence of this Agreement. 12 . THIRD PARTIES . Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person, other than the parties hereto and their successors and assigns, any rights or remedies under or by reason of this Agreement. 13. SEVERABILITY. If any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a court of competent jwisdiction, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein, unless such invalidity, illegality or unenforccability materially affects the economic terms of the transactions contemplated by this Agreement or the ability of either party to perform its obligations under this Agreement. In such case ,either party may terminate this Agreement and the escrow upon written notice to the other party given no later than ten (I 0) business days after the party giving such notice becomes aware 323 of such invalidity, illegality or unenfori:eability. 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 hereunder on behalf of Buyer provided they are in writing. 16. DUE AUTHORIZATION/EXECUTION. Upon execution hereof, each party shall promptly provide to the other party feasonable evidence of its due authorization of this Agreement. 324 IN WJTNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. SELLER: ESSEX MOORPARK OWNER, L.P., a California limited partnership By: Essex Moorpark GP, L.P., a California limited partnership, its general partner By: Essex Management Corporation, a California corporation, its general partner By: ________ _ Print Name: ______ _ Title: ________ _ BUYE R: CITY OF MOORPARK ~y: ____________ _ Attest: Janice S. Parvin Mayor Maureen Benson, City Clerk APPROVED AS TO FORM: Kevin G. Ennis, City Attorney 325 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All 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, 200 5 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 Iostnunent 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 cast line of Parcel IA of said Lot Line Adjustment No. 2005 -03, distant thereon North 292.97 feet from the southeasterly comer thereof; I st Thence, departing said east line South 89°3 8'32"West 752.05 feet; 2nd Thence , South 27°20'34West 36.75 feet; . rd 3 Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel IA. 326 EXHIBIT "B" FORM OF GRANT DEED (Attached.) 327 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Of Moorpark 799 Moorpark Avenue Moorpark, California 93012 Attention: City Clerk APN:· _______ _ [SPACE ABOVE FOR RECORDER'S USE ONLY) GRANT.DEED THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS: The undersigned declares that this Grant Deed is exempt from Recording Fees pursuant to California Government Code Section 27383. Documentary Transfer Tax is $0 (exempt; conveyance to a public entity). FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged the ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Grantor") hereby grants to the CITY OF MOORPARK ("Grantee"), the land and located in the County of Ventura, State of California, more particularly described on Exhibit A attached hereto and incorporated herein by reference and all improvements thereon (collectively, the "Property"): IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth below. Dated: ----~·201_ GRANTOR: ESSEX MOORPARK OWNER, L.P., a California limited partnership By: Essex Moorpark GP, L.P., a California limited partnership, its general partner By: Essex Management Corporation, a ·California corporation, its general partner By: ________ _ Print Name: ______ _ Title: ________ _ 328 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the docwnent to which this certificate is attached, and not the truthfulness, accuracv, or validitv of the document. STATE OF CALIFORNIA COUNTY OF ____ _ On_______ ____, 20 __ before me, ___________ __, Notary Public, personally appeared · who proved to me on the basis of satisfactory evidence to be the person(s) whose na,me(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.· I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: ________ _ ( affix seal in above space) 329 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, Cowity of Ventura, State ofealiforitla, recorded May 3, 2005 as Document No. 20050503 ~· 0108315 or official records in the Office of the Cowity Recorder of said Co1,111ty, 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 Cowity 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 northerl y of the following described line; B EGINNING at a point in east line of Parcel I A of said Lot Line Adjustment No. 2005 -03, distant thereon North 292.97 feet from the southeasterly comer thereof; I s' 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. 330 CERTIFICATE OF ACCEPTANCE (California Government Code Section 27281) This is to certify that the interest in real property conveyed by that certain Grant Deed dateq ___ _, ~Q I 7, fu,Ill ~~J~ M.o~r-p~~ Q~e.r, ):,.t to the_ City of Moorpark, which is a political corporation, is hereby accepted by the undersigned officer on behalf of the City of Moorpark pursuant to the authority conferred by action of the City of Moorpark on ___ __, 2017, and the grantee consents to recordation thereof by its duly authorized officer. Dated: ____ _,2017 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, aod not the truthfulness, accwacy, or validity of that document. State of California County of _____ _ Steven Kueny, City Manager ) ) 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 \vithin ·instrwnent and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/)l.ei:/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 StateofCalifomia that the foregoing paragraph is true aild correct. WITNESS my hand and official seal. Signature _____________ _ (Seal) 331 EXHIBIT "C" FORM OF EASEMENT (Attached.) 332 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO : Essex Moorpark Owner, L.P. 1100 Park Place, Suite 200 San Mateo, CA 94403 Attn: Legal (Space Above For Recorder's Use) EASEMENT AGREEMENT THIS EASEMENT AGREEMENT (t~e "Agreement") is entere.d into as of ____ ..., 2017, by and between the City of Moorpark, a municip al corporation ("Grantee"), and Essex Moorpark Owner, L.P., a California limited partnership ("Grantor''). RECITALS Grantor is theownerofthereal property located in the City of Moorpark, County of Ventura, State of California, as more particularly described in Exhibit "A" attached hereto and incorporated herein by reference (the "Property"). Grantee and Grantor entered into a Development Agreement dated as of ______ ..., 2017 (the "Development Agreement"), 'and an Agreement ·for Purchase and Sale and Escrow Instructions dated as of ___ __, 2017 (the "Purchase Agreemeni"). Grantee requires access to a certain area of the Property for itse lf, its employees, its contractors, . and any and all .permittees and invitees of Grantee and any and all of their respective permittees and invitees, including, without limitation, any third party developer and/or its agents, contractors and subcontrators, and all of their respective agents, employees and rep res·entatives (collectively, the "Grantee's Agents.") prior to the closing of the purchase and sale and conveyance of the Property to Grantee in accordance with the Purchase Agreement for the purpose of stockpiling soil on the area s hown on Exhibit "B" hereto (the "Stockpi le Area"). Grantor desires to grant to Grantee a exclusive access easement for Grantee and Grantee's Agents to enter the Stockpile Area and an easement for the limited purpose o{ stockpiling soil thereon and fencing the Stockpile Area . Such soil shall ~e subject to removal pursuant to the terms of this Agreement. In consideration of Grantee being granted access to the Property as described in this Agreement, Grantee and Grantor hereby agree as follows: • In corporation of Recitals, Capitali1,ed Terms. The Recitals are incorporated herein as part of this Agreement. In addition, capitalized terms not otherwise. defined herein or in the Recitals shall hav e the meaning set forth in· the Development Agreement and Purchase Agreement. 333 o Grant of Easement. Grantor hereby grants to Grantee for the benefit of Grantee and Grantee's Agents, a non-assignable but exclusive easement (the "Easement") to enter the Stockp ile Area and to use the Stockpile Area for the sole purpose of depositing and storing of clean, imported soil (in cluding the right of access for all necessary personnel, equipm ent and materials but excluding any right to take any other action on, in , over, under, or around the Stockpi le Area) and fenci ng 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 stagi ng, the storage of construction materials and suppl ies, or the s tockpiling of soil and other materials by Grantor on such other portion of the Property. If Grantor, in Grantor's reasonable judgment, determines that Grantee has breached the covenants in the preceding sentence, Grantor shall have the right to suspend Gran tee 's access to the Stockpi le Area from the Property unti l the breach has been cured to Grantor 's reaso nab le satisfaction. · · • Termination. 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 "t he final certificate of occupancy is issued for the Property, if escrow closes purs uant to Section 4.3 of the Purchase Agreement, (ii) any eru:li er 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 Remov al 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 prompt ly 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 Sectio n 4, to restore tbe Property, the Stockpile Area, or b oth, to the condition that ex isted 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 condiiion and Grantee shall reimburse Grantor for all costs and expenses incurred by or on behalf of Grantor in connection therewith . o Haza rdous Materials. Grantee shall take all actions necessary and required to assure that any and all soil brought to the Property (whether by Grantee or Grantee's Agents) fo r placement in the Stockpile Area shall not contain or be affected by any "Hazardous Materials" (as defined be low) such that (i) it cannot be lawfully placed for storage on the Property or (ii) it would adversely impact soi l, gro undw ater or environmental conditions present on or und _er the Property or otherw ise 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, toxic substances or other related materials whether in the form of a chemical, element, compound , solution, mixture or otherw ise. 334 For the purpose of this Agreement, Hazardous Materials shall include, b ut not be limited to, substan= defined as "hazardous substan=", "hazardous materials," "contaminants," "pollutants," "hazardous wastes" or "toxic substan=" (a) in (i) the Comprehensive Environmental Response, Compensation and Liabili ty Act of 1980, as amended by the · SJJperfund Amendments and Reauthorization Act 42 U.S .C. Section 9601 et seq., (ii) the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the Federal Water Pollution Control Act, as amended, 33 U.S.C . Section 1251 , et seq., (v) the Clean Air Act, 33 U .S.C. Section 7401 et seq., (vi) the Toxic Substan= Control Act, 15 U.S.C. Section 2601 et . seq., (vii) the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., (viii) Sections 25117 and 25316 of the Californ ia Health & Safety Code, (ix) applicable state or local law, or (x) the rules, orders or regulations adopted or proposed or in the publications promulgated pursuant to said laws; or (b) in any reported decision of a state or federa l court . • Gran tee's Indemnity. Grantee, to the fullest extent pennitted by law, shall be solely responsible for and pay for any and all loss and/or damage (i) to the Property, the Stockpile Area, or both (and any property adjoining the Property, the Stockpile Property, or both), or (ii) arisiJ1g out of or in connection with the use, storage or transport of Hazardous Materials on the Property and/or Stockpile Area, including but not limited to the cost of any remediation or third party claims re lated thereto, arising wholly or in part· from or in connection with the use of the Property, the Stockpile Area, or both, pursuant to ( or in violation of) this Agreement. Grantee shall keep the Property, the Stockpile Area, or both , free and clear of all environmental liens, mechanics' and roaterialmen's liens and claims for labor and/or materials · arising out of any activity upon the Property, the Stockpile Area, or both by Grantee or Grantee's Agents . Grantee shall protect, defend, indemnify and hold Grantor and its members, managers, partners, agents, officers, directors, employees and affiliates (''Grantor Inde_mnified Parties") free and harmless against all claims, liens , actions, losses , liabilities, damages, costs and expenses (includ ing but not limi~ed to reasonable attorneys' fees and costs and including any claims arising in connection with the use, storage or transport of Hazardous Materials on the Property and/or Stockpile Area, including, but not limited to, the cost of any remediation or third party claims related thereto), collectively, "Clainls") of whatever kind or nature, including, but not linlited to, consequential damages, arising in connection with the rights granted under or any breach of Grantee's or Grantee's Agents covenants contained in this Easement except to the extent caused by Grantor's gross negligence or·wiJlful misconduct. The forego ing indemnification shall survive the termination of this Agreement. o Comp liance wi th Laws. Access to and use of the Property, the Stockpile Area, or both, by Grantee and Grantee's Agents and others shall be in strict compliance .with all applicable laws, statutes, ordinan=, rules and .regulations, includ ing, without limitation; those of the United States and the city, county and state in which the Property is located, and any agency of any of the foregoing (the "Laws"), and Grantee shall defend, indemnify and hold Grantor and its members, managers, partners, agents, officers, directors, employees and affiliates free and harm less against all penalties, charges and damages including, without limitation, consequential damages, costs and expenses (including, without limitation, attorneys' fees and expenses) of whatever kind or nature, imposed for any violation or alleged violation by Grantee or any Grantee Agent of any such Laws. Grantee sh all be responsible for obtaining and complying with the conditions and requirements of all permits and approvals required under all 335 applicable Laws in connection with Grantee and Grantee's Agents' activities on the Property, the Stockpile Area, or both. o Insuran ce. At its sole cost, Grantee shall either maintain its participation in the insurance program administered by the California JPIA (which includes liability coverage of $1,000,000 per occurrence, with accrued aggregate limit of $1,000,000) or maintain equivalent insurance, and will cause Seller to be named as additional insured thereunder, with respect to Grantee's entry on and ·use of the Property. At its sole cost, Grantee shall deliver to Grantor reasonable evidence of such insurance prior to entering the Property or the Stockpile Area. o No Representations or Warranties Hereu nder. Grantee understands that neither Grantor nor any Grantor Indemnified Parties have made or make any representation or warranty, express or implied, as to the suitabi lity of the Property or the Stockpile Area for Grantee's use in connection with the License granted under thi s Agreement. AJI infonnation 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 perfonnance of this · Agreement without any rep(esentation or warranty as to its accuracy or completeness. Neither Grantor, nor any Grantor Indemnifi(ld Parties or their respective attorneys or advisors or any other person will have any liability to Grantee or any of Grantee's Agents under this Agreement for information provided or the exercise by Grantee or Grantee's Agents of any rights granted either hereunder. • No Wai ver. It is understood and agreed that no failure or delay by Grantor in exercising any right, pow: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 ami:nded except by the written agreement of Grantor. o Injunction. Grantee further understands and agrees that in the event of any breach of this Agreement by Grantee or any of Grantee's Agents, Grantor would be •irreparably and immediately hanT\ed and could norbe made whole by monetary damages. Accordingly, Grantee hereby agrees that Granto r, in addition to any other remedy which it may have at law or in equity, shall be entitied to injunctive relief to prevent breaches of this Agreement and/or specific performance to compel compliance with this Agreement. o Assign ment. This Agreement is binding on the successors and assigns of the parties hereto. Notwithstandi ng the forego ing, Grantee may not assign its rights hereunder without the prior writt~n consent of Gran tor in its sole discretion. o Miscellaneous. This Agreement and any and al) matters arising under, from or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of California without regard to choice of laws principles. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original , but all of which, together, shall constitute one and the same instrument. A facsimile, scanned or photocopy signature on this Agreement, any amendment or waiver hereto, or any notice delivered hereunder shall have the same legal effect as an original signature. This Agreement may not be amended or modified except in writing executed by the parties hereto. 336 . [signature page follows] IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and y,ear first set forth above. GRANTOR: ESSEX MOORPARK OWNE R, L.P ., a Cal ifornia limited partnership By: Essex Moorpark GP, L.P a Califomia limited partnership, Its general partner By: Essex Management Corporation a Califomia corporation, its general partner By: Title: Print Name: Grantor Notice Information: Essex Moorpark Owner, L.P. c/o Essex Property Trust 1100 Park Place, Suite 200 San Mateo, Ca 94303 Atte ntion: Legal Department GRANTEE: CITY OF MOORPARK, a municipal corporation By: _________ _ Janice S. Parvin , Mayor Grantee Notice Information: City of Moorpark 799 Moorpark A venue Moorpark, Califomia 9302 1 Attn : City Manager 337 EXHIBIT "A" LEGAL DESCRIPTION OF THE PROPERTY All of Parcel IA ofin 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- 0 I 08315 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 Miscell aneous Records (Maps) in the Office of said County Recorder. EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed Apri l 30, 2009 as Instrumen!No. 20090430-00069389 of Official Records of said County. ALSO EXCE PT THEREFROM 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 south easterly corner thereof; 1•• Thence, departing said east line South 89°38'32"West 752.05 feet; 4nd Thence, South 27°20'34West 36.75 feet; 3td · Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel IA. 338 EXHIBIT "B" STOCKPILE AREA (See attached diagram.) 339 i[ ' ' ' . ' ' • ' ' ' ' : ' ' i ' ' ' • ' ' ' ' . ' ,_ ______ .., ' ' ' • ' ' ' : .J, ! t,' n: ' . ' ' l ' \ . --.: 340 12853-0018\2044326v1.doc EXHIBIT "D" MAP FOR RE LOCATED POWER LINES (Attached .) 341 f . ' ~~ ' ' . . ' ... . \ ----'-'------------~---+.!. ' ' ' i ' I I ' ., .. - / •.• .. . -·. ' I' • • ;, \ "!l'1I t·----l,lt._= __ S.M_;l~SSIO~N::..R::O~U'l'=IN::l<)c.SX-ll_lB_•T_] CITYOPMOORPARK OPTION l•BfOVl;aHtADST!KL J'Ot.ltS) l'Nt,tOORl',.111(,1,,VlNl,".f; MOORPAJIK,\P.utr')lE:\'1'$ ~.UII.CANOtl CITY01"»00R.PARJC L------------' -4 - 1 ?Sl"-.1.M1 R\?044:l?f=;v1 tW. . \ ~ ·-··-... ~::n;..~~ -.;~-i'L- 342 EXHI BIT "E" A DD RESSES OF PARTIES To C ity: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager T o D e ve loper: ESSEX MOORPARK OWNER , L.P. Attention: John D. Eudy 1100 Park Place, Suite 200 San Mateo, CA 94403 With required copies to: ESSEX PORTFOLIO, L.P. Attention: Jordan Ritter 1100 Park Place, Suite 200 San Mateo, CA 94403 and ESSEX MOORPARK OWNER, L.P. Attention: Bob Linder 17541 Derian Avenue, Suite 11 0 Irvine, CA 92614 12853 ·00 18\204 4326v1 .doc 343 EXHIBIT "F" FORM OF AFFORDABLE HOUSING AGREEMENT 12853-0018\2044326v 1 .dO<: (Attached.) Exhibit F Page 1 of 1 344 Recording Requested By : CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 Attention : C ity Clerk OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 SPACE ABOVE THIS L IN E FOR RECORDER'S US E AFFORDABLE HOUSING AGREEMENT by and between CITY OF MOORPARK and ESSEX MOORPARK OWNER, LP. Dated as of , 2017 _____ , 345 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 CllY 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 Deve lopment Ag reemen t dated _______ , recorded as Instrument No . _______ in the Official Records of the County of Ventura on _________ (the "Developmen t Agreem ent") pursuant to wh ich Owner will construct a residential development consisting of 200 apartments on app roximately 10.57 acres (the "Property"), described more specifically on Exhibit No . 1 attached hereto and incorporated herein by refere nce, 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 manne r 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 exhibit) 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 th at Owner and Affordable Housing Owner maintain each and every one of the Affordab le Units at all times in the same manner as the market rate units, including, but not limited to the quality and maintenance of flooring , window coverings , appliances, heating and air' conditioning systems, storage space and type , and the number and location of requi red parking spaces. E. The Development Agreement requ i res 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 du e). F. As perm itted by the Development Agreeme.nt, Owner may apply for approval of an air r ights subdivision such that the Affor.dab le Units may be conveyed to and separately owned by a sing le entity affil iated w ith Owner (as descri bed in the Development Ag reement) and used solely as affordable rental units in accordance with this Agreement. Such affiliated ent ity is referred to herein as the "Affordable Housing Owner''. 346 NOW, THEREFORE, in consideration of the mutual covenants and undertakings set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the City and Owner hereby agree as follows: ARTICLE 1 DEFINITIONS AND INTERPRETATION 1.1 Definitions. Capitalized terms used herein shall have the following meanings. "Affordable Housing In lieu Fee" shall mean the annual fee paid to the City in exchange for the Owner and Affordab le Housing Owner not being obligated to provide four (4) additional Affordable Low Income Units in addition to the 50 Affordable Units required by th is Agreement. "Affordable Housing Owner" shall mean the single entity to which the sixteen (16) Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax exempt bond financing and low income housing tax credits are used with respect to the Project described in Section 2.1 below; however, until Owner conveys such Affordable Units to Affordable Housing Owner, and if Owner never conveys the Affordable Units to Affordable Housing Owner, and to the extent of its ownership of the ten (10) Units described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing Owner" as well as the "Owner''. · · "Affordable Rent" shall mean the rent described in Sect ion 2.9, subject to Section 2.10. · "Affordab le Units" shall · mean the re.nt-restricted dwelling unfts for Low Income Households, Very Low Income Households and Moderate Income Households described in this Affordable Housing Agreement. "Agreement" shall mean th i s Affordable Housing Agreement. "City" shall mean the City of Moorpark; California, a municipal corporation. "County" shall mean Ventura County. "County Median Income" shall mean the Median Income adjusted by actual household size as published annually by the Department of Housi ng and Community Development (HCD) of the State of California for the County, which Median Income levels shall be adjusted concurrently with publication of adjustment of the same by HCD (or if HCD discontinues such publication , then such reasonab le replacement publication as may be se lected by City in good faith). "Density Bonus" sha ll mean the density bonus granted by the City to Owner in connection with the Project pursuant to the Project Approvals , which requires the Deve loper to construct the Project, and also requires that at least twenty pe rcent (20%) (i.e., 40 units) of the total dwelling units in the Project be rented at an Affordable Rent to Very Low Income households (i.e., 50% of County Median income) and Low Income 347 households (i.e., 80% of County Median Income) and an additional five percent (5%) (i.e. 1 O Units) of the total dwelling units in the Project be rented at an Affordable Rent to Moderate Income households (i.e. 120% of County Median income). "Development Agreement" shall mean that certain Development Agreement dated _____ , 2017, recorded substantially concurrently herewith in the Official Records of the County of Ventura . "HCD" shall mean the pepartment 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 occupal)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 published information is no longer available. "Low ·Income Household " or "Lower Income Household" or "Low Income Tenant'' means individuals or households qualified ·on the basis of a "certification of tenant e ligibility" as certified by such individual or.household, who have a gross income which does not ~xceed 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 household size appropriate to. the Unit. The ·household income amount for Moderate Income households for any year shall be based on the amount most recently published by HCD as the Household Income Limits for Ventura County ("HCD Income Limits") or such successor information in the event the referenced published information is no longer available. · 1 "Moderate .Income Household" means individuals or households qualified on the basis of a "certification of tenant eligibility" as certified by such individual or household, who have a gross income which does not exceed Moderate Income, adjusted for household size. "Moderate Income Units " means Units rented to Moderate Income Households. "Owner" shall mean Esse x Moorpark Owner, 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. 348 "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 connecti on with all such improvements and all functionally related and subo rdinate facilities, and all improvements required by the Project Approvals. "Prc;,ject 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 ach ieves 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 HCO 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 individuals or households qualified on the basis of a "certification of tenant eligibility" as certified by such ind ividua l 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 , incl ud ing the terms defined herein shall include the plural and vice versa. The use herein of a word of any gender shall include correlative words of all genders. 1.2 .2 The words "hereof," "herein," "hereunder," and words of similar import shall refer to th is Agreement as a whole. 349 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 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, construction , or effect of the provisions hereof. 1.2.5 In the event the Development Agreement and th is Agreement conflict, the provis ion more beneficial to the City, as determined by the City Manager, shall govern. ARTICLE 2 AFFORDABLE HOUSI NG IMP LEMENTATION ANQ RENTAL RESTRICTION PLAN AN D 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 obtain Federal low income housing tax credits and tax-exempt bonds (collectively, "Affordab le Housing Financing") to finance the Project, which will require that forty (40) of the Affordable Units be restricted for rerit 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 "Q ualified Project Period"). At the end of whichever is the last to expire of the Compliance Period and Extended Use . Period and the Qualified Project. Period, Owner shall rent the ten (10) Mode rate Income Units to Low Income Households consistent with the requirements of this Agreement. Upon the the last to expire of the Compliance P.eriod and Extended Use Period and the Qua lified Project Period, the provisions of this Agreement shall be appl icable and the number of Very Low Income Un its, Low Income Units, and Moderate Income Units shall be consistent w ith Section 2.1.A. above and Exhibit No. 2. At the time the Project is no longer required to comply with Affordable Housing Fi nanci ng, the City, Owner and Affordable Housing Owner shall in good faith , and consistent with applicable law and this Agreement , prepare a plan to trans ition the Affo rdable 350 Units so that the number of Very Low Income Units, Low Income Units, and Moderate Income Units in the Project is as required by Section 2 .1A above and Exhibit No. 2 and that there are Very Low Income Households , Low Income Households, and Moderate Income Househo lds occupying the Affordable Units consistent with Section 2 .1.A. above and Exhibit No. 2 in the shortest possib le time. 2.2 Agreement to be Recorded: Priority. Owner and Affordable Housing Owner represent, warrant , and covenant that they will cause this Agreement to be recorded in the Office of the County Recorder of Ventura County, California, and that this Agreement shall be senior in priority to any lien, encumbrance or other matter of record except as expressly approved in writing by City. The Owner or Affordable Housing Owner shall pay all fees and charges ·in connection with any such recordation. 2.3 · . Use of the Property. Owner represents, warrants, and c_ovenants to develop and operate the Project and Property as a mu ltifam ily residential rental property and uses incidental thereto and for no other purposes. Owner and Affordable Housing Owner agree that the Affordable Units shall have the same or better amenities (in type , quality and number) as the market-rate units in the Project (as determined by the Community Development Director) and shall be located as described on the site plan attached to Exhibit No. 2. Such amenities for the Affordable Units shall include, without l imitation, air conditioning/heating , plumbing and electrical fixtures, garbage disposal, f looring, cabinets , counter tops, trim , built-in dishwasher, clothes washer and . dryer, sinks , bathtub, solar or so lar stub out, water heater, built-in oven, microwave, stove, bathroom fan (the most quiet model), garage door openers, doors a_nd door hardware, and floor and window coverings (all to the same extent provided for the market rate units). Owner and Affordable Housing Owner shall promptly notify City in writing upon any re location of an Affordab le Unit under this Agreement (meaning change in the designated/intended household income level, not an actual change in the fixed locations of the Affordable Units, which constitute a· separate subdivided parcel, and are fixed as shown at the end of Exhibit No. 2). and each such notice shall include the basis for such re location and the location of such relocated Affordable Unit(s); however, the ten (10) Mode1c1te Income Units to be owned by the Owner of the market-rate Units shall be random ly dispersed among its Units in the portion of the Project owned by the Owner consistent with Exhibit No. 2. Owner and Affordable Housing Owner further agree not to convert the Project or any part thereof to any type of common interest development, for-sale condominiums, community apartments, planned development, stock cooperative, hotel, motel, or any type of congregate care or assisted living facility (but the foregoing shall not prohibit the air rights subdivision and conveyance described in Recital F above). Owner and Affordable Housing Owner agree that they shall not knowingly permit any of the Units in the Project to be used on a transient basis and shall not rent any Unit for a period of less than thirty (30) days. At no t ime 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 affi liated with any such owner, or to any such affiliated company. 351 2.4 INTENTIONALLY OMITTED 2 .5 Rules . In addition to the conditio ns and restrictions to be contained in leases or rental agreements as prov ided in this Agreement, ongoing operation of the Project will be subject to reasonable house rules, polic ies and regulations issued from time to t ime by Owner an.d Affordab le Housing Owner and approved by City which approva l shall not be unreasonably withheld , conditio ned, or delayed ("Rules"). Owner and Affordable Housing Owner shall submit such Rules to City during the Initial Rent-Up for the City's approval, which will not be withheld , conditioned or delayed. Annually, Owner and Affordable Housing Owner shall subm it any amendments, mod if ications or changes to such Rules to the City at least forty-five (45) days prior to their proposed effective date and all of such amendments, modifications and changes shall be subject to the City's prior written consent, which will not be withheld, conditioned or delayed. If City does not consent, City shall spec ify the reasons in writing so that Affordab le Housing Owner can revise the amendment(s), modification(s) o r change(s) and re - submit them for City approval, which will not be withheld , cond itioned or delayed . In additi on , Owne r and Affordable Housing Owner shall submit to the City on an ann ual basis a certification that the Rules previously subm itted to City, as amended, remain in effect (with a copy .of the Ru les and any amendments). If app licab le, this Agreement shall be cons istent with any Extended Use Agreement entered into petween Owner or any affiliate of Owner and th e_ California Tax Credit Allocation Comm ittee . 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 marl<et-rate Units), all of the Affordable Units shail be and remain owned by the Affordable Hous ing Owner (an affiliate of the Owner of the market- rate Units). Such ten (10) Ul)its (Moderate, or Low Income until the last to e nd 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 Affordab le Units Generally. 2.7.1 Allocat ion/Dispersal of Affordable Units. As set forth ol) Exhibit No. i, the Affordable Units shall be random ly dispersed throughout the Project, and as described in Section 2.3 above , Owner and Affordab le Housing Owner shall promptly notify City in writing of any change in the designated income level of any Affordable Unit. 2.7 .2 Access ible Compl iant Unit s. Four (4) of the nin eteen (19) one- bedroom one-bath affordab le Low and Very Low Income units shall be complia nt with all laws regarding disabled persons (including, Without limitation , the Americans with Disabil ities Act) and s hall be reserved for a nd occup ied by persons el igible for such · accommodation s , to the extent there is a qualified accessible Low or Very Low Income pe rson ready to occupy such un it. Owner and Affordable Housing Owner shall ma i ntain a waiting list for the affordab le accessible-compliant units, shall promptly deliver a copy 352 thereof to City and shall thereafter deliver a copy of the revised list to City whenever the list changes. Should there be a qualified Low or Very Low Income prospective tenant desiring to rent such a unit but all such units are rented , Owner and Affordable Housing Owner shall add such prospective tenant to the waiting list for the affordable accessible- comp liant units. At the earliest possible time a Low or Very Lo)V Income non-accessible comp liant affordable unit becomes avai lable, the non-access ible Low or Very Low Income tenant who occupies the affordable accessible compliant unit shall be relocated to another affordable unit in order to allow the qualified disabled household to occupy the accessible compliant unit. Owner and Affordable Housing Owner shall include a provision in the non-accessible compliant affordable lease for any accessible-compliant affordable unit that the non-accessible Low or Very Low Income tenant agrees to be relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible compliant unit becomes available. While any of the four (4) affordab le accessible- compliant units are not being leased to disabled persons (due to unavailability of such persons to lease), the appl icable Affordable Unit shall be leased in accordance with this Agreement. At all times, Affordable Housing Owner shall keep City informed in writing of the income level appl icable to each accessible compliant unit. The fixed locations of the Affordable Units shall be as shown on the site plan attached to Exh ibit No. 2. . . The accessib le compl iant units shall be consistent with accessibility design criteria established by the State of California, and Owner and Affordable Housing Owner shall promptly make any changes to such units required by new laws or changes in laws. Reasonable accommodation shall be made, as may be requested by specific Low or Very Low Income disabled tenants in such units, to provide features such as ·smoke alarms with flashing lights, for instance, if ·requested by hearing impaired Low or Very Low Income tenants in an accessible compliant unit. 2.7.3 Affordable Housing In Lieu Fee. 2 .7.3.1 ·· In addition to the Affordable Units herein described, Owner and Affordable Housing Owner shall pay (and be jointly and severally liable for) a single annual in lieu fee for having irrevocably elected not to provide four (4) additional Low Income units (the "Affordable Housing In Lieu Fee "). The modification of affordability levels for Affordable Housing F inancing purposes (as described i n Section 2.1 , 2.12 and Exhibit No. 2), shall not affect the foregoing. 2 .7 .3 .2 The Affordable Housing In Lieu fee shall initially be Forty Seven Thousand Five Hundred and No/100 Dollars ($47,500.00) if pa id on or before Jam1ary 1, 2019. If the initial payment is not paid by January 1, 2019, it shall increase by two percent (2%) each year above the prior year amount. Similarly, all subsequent annual payments shall increase by two percent (2%) of the previous year's payment. Payments shall be made on March 10 of the first ca lendar year in which one or more residentia l unit in the ' Project has theretofore been occupied , and on or before 353 March 1 0 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 (const ituting liquidated damages) equal to ten percent (1P%) 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 stipu late and agree that it would be very difficult and impractical to determine the damages suffered by City, as a public entity , due to late payments. Payments received more than ten (10) days after the due date shall, i n addit ion to the ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the due date through and inc luding 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 Affo rdable Housing Owne r to any othe r 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 Ct>unty Assessor and not exempt from the payment of new property taxes. The calculation shall provide the City 0.095% (equivalent to $950.00 per $1 million of assessed value) of the assessed value or such higher percentage of the tota l new property taxes if the -City port ion has been increased by action of the State of California or by a statewide initiative or referendum. (For example, if the sale results i n a val ue of $50,000,000.00 then the annual fee to the City would be $50,000,000.00 X .00095 = $47,500.00, or if the City portion of the property taxes has been increased by the State of California on a statewide initiative or referendum then the amount would increase). In the event the payment to the City under _this calculation would be less than the I nitial Affordable Housing In-lieu Fee Amount, inclusive of an y 2%. adjustments applied as of the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount . shall continue until such time as the ca lculation in this paragraph would yield a higher annual fee. 2 .7.4 Preference Policies. To the extent permitted by app licable state and federal law, priority shall be granted to eligible City of Moorpark res idents. A waiting list for the Affo rdab le Units shall be maintained from wh ich vacancies shall be filled. The waiting list shall be established through a fair process for the selecti9_n of the next eligible households to fill the vacancies all owing 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 bui lding permit for this project. Add itionally, Affordable Housing Owner shall submit to City an annual report, no later than January 30 of each ca lendar year for the pervious ca lendar 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 occup ied 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 res ident who on the waiting list and was given priority. Any reporting 354 schedule less frequent than quarterly must be express ly approved in writing by the City Manager. 2.7.6 Un it Classification. An Affordable Unit occupied by a Very Low Income Tenant, a Low Income Tenant, or a Moderat e 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 othe r than for a temporary period (not to exceed· 60 days), at which time the classificat ion of the Unif shall be redetermined (provid ed that upon such reclassification , Affordable Housing Owner must remain in compliance with this Agreement). Owner and Affordable Housing Owner shall use commercially reasonable efforts to prevent s·uch temporary periods from exceeding sixty (60) days. Owner and Affordable Housing Owner. will also obtain and maintain on file such Certifi cations of Tenant Eligibility in the form of Exhibit No. 3 attached hereto , for each Very Low, Low and Moder.ate Income Tenant. Owner and Affordable Housing Owner shall make a good fa ith effort to ve rify that the income declared by an applicant in an ir,come 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 fo r the most recent tax year; · (c) An income verification form from the applicant's current employer; (d) An income verification form from the Soc ial Security Administration and/or the California Department of Socia l Services if the applicant receives assistance from either of those age ncies; 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, el igible Very Low and Low I ncome applicants for the ADA compliant units shall submit a letter from a physician or other document acceptable to the City, Owner and Affordable Housing Owner which confirms t he accessib ility 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 wh ich authorize the Owner or Affordable Housing Owner, as applicable , to im mediate ly 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 I ncome 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 Affordab le 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 355 the City , and shall be subject to rental increases in acco rdance with Section 2 .1 O of this Agree ment. · 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 implementat ion of this Agree ment, and shall notify Owner a nd 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 residential occupancy of the Project, Affordable Housing · Owner and Owner shall pay to the City for the administration of this Agreement (and be jointly and severally liable for) an annual fee equal to twenty-five thousand dollars ($25,000.00), ·subject to adjustment annually by the larger of (a) or (b} below: (a) The percentage increase in the Cons umer 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/River:;ide/Orange County metropolitan area. The calculation shall be made by copy irig suc h CPI for the month of Octobe r to the CPI for the previous October. · (b) The annua l percentage amount paid 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 Poo led Money Investment Account for the most recent four (4) calendar quarters divided by four (4). In the event the CPI or LAIF is discontinued or revised , such successor index with which they are replaced shall be used to achieve substantially the · same result, or it there is no successor index, then another index shall be used to achieve substantially the same result. · 2 .7.10 Lease Provisions. The provisions relating to certificat ion and recertification of income in the form of lease or rental agreement used by the Owner o r the Affo rdable Housing Owner for the lease or rental of the Affordable Un its shall be subject to review and app roval by the City, the approval of wh ich s hall not be urireasonably withheld , conditioned, or delayed. If the lease or rental agreement provis ions specified in this Section are not approved or disapproved with in th i rty (30) days after submittal to City, t hey 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 Un its which comply with this Agreement. 356 2.8.2 During the Initial Rent-Up, the Very Low ·lncome 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 . t hose 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 Init ial 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, renta l, and rent grievances as may be reasonably required by the City. Not later than ten (10) days prior to the commencement of marketi ng , Owner and Affordable Housing Owner shall prepare and submit to the City for reasonable approval a marketi ng and outreach program which shall contain, among other things, the following : how a potential tenant would apply t o rent a Unit in the Project, including wh e re 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 mailing notices of vacancies to or contacting by telephone potential tenants on the waiting list maintained by Owner and Affordable Housing Owner. Notices shall also be given to organizations in Ventura County which p rovide 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 compliance w ith this Agreement), Owner or Affordable Housing Owner, as applicable , shall pay the City a single fee of $1 O (which shall increase by $2 every five (5) years) per day until the Affordable Unit 'is placed back in service except that such fee shall not be payable for so long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build the Affordable Unit in question, as shown by reasonable evidence provided to City. 2.9 Affordable Rent. 2.9.1 Monthly rent charged to Very Low Income households shall be no greater than thirty percent (30%) of fifty percent (50%) of County Median Income, adjusted for fam ily 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 un it , 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 357 2.9.2 Monthly rent charged to Low Income Tenants shall be no greater than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for family size appropriate for the Unit, less the Utility Allowance . · "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h} of the California Health and Safety Code to be 2 persons for a :1 bedroom unit, 3 persons for a 2 bedroom upit and 4 persons for a 3 bedroom unit. 2.9.3 Monthly rent charged to Moderate Income Tenants shall be no greater than th irty percent (30%) of one hundred and ten (110%) of County Median Income, adjusted for family size appropriate for the Unit, Less the Utility Allowance. "Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit. 2.9.4 Utility Allowances will be adjusted annually using the most current "Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667) based on Apartment/Walk Up unit type as posted and updated annually by the Area Housing Authority of the County of Ventura based on the following appliances/utilities to ~e provided to the units: Natural Gas -Heating, cooking, water heating Water, Sewer, Trash, O.ther 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 similarly associated with anticipated financing of the construction of this project, or future prudent refinancing of this project, utilizes definitions, sources of information, etc., other than those which have been herein defined and utilized in calculating Affordable Rent, then the procedure or input which produces the lowest affordable rent, will prevail. 2.11 Income Recertification : Rent Increases. 2.11.1 Owner and Affordable Housing Owner shall cause the income of each Tenant of an Affordab le 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 ca lendar year, concurrently wjth or subsequent to any increase in the County Meqian Income when and as determined by HCD. The rents charged for the Affordable Units following such an increase, or upon a vacancy and new occupancy by a Very Low, Low or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent calculated in compliance with Sections 2.9 , 2.12.1 , 2 .1 2.2, and 2.12.3 below. 358 2.12 Increased Income of Occupy i ng Households. On ly afte r the last to exp ire of the Compliance Period and E)(!ended 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 income 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 , the 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 occupancy by) a Very Low Income fiouset)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 maximum a ll owable household income of a Low Income Tenant, to not m ore than Moderate Income, which is one hundred and twenty percent (120%) of median income, then the Owner or Affordable Housing Owner, or both , as applicable, shall not be required to evict t he 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 Gounty Median Income fo r the size household appropriate to the unit, less the utility allowance. In this event, the next available un it 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 wh ich are net of the utility allowance). · 2.12.3 If, upon i ncome re -certification, the Owner or Affordab le Housing Owner, or both , as applicable, determines that the income of a tenant occupying one of the Affordable Units has increased and now exceeds that of a Moderate Income household, the Tenant is no longer eligib le to rent the unit, and the Owner or Affordab le Housing Owner, o r both, as app licable, shall not increase the rent but shall provide written notice to the Tenant to vacate the unit within s ix (6) months . If an appropriate unit is ava ilable to substitute for sa id un it, and the "substitute unit" has not been one of the Affordable Units, prov ided that sa id substitute un it is of the same configuration and size as the unit currently occupied by the now ineligible T enant, the Affordable Housing Owne r may request authorization from the City Manager or his/her des ignee to substitute the like unit for the Affordable Unit, and cause the rent on the substitute un it to be at the same level of affordab ility as the unit that was occup ied by the formerly 359 elig ible 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 i ncome is not greater than the maximum allowable househo ld i ncome leve l 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 J.-ow Income Households, but shall continue to app ly to the ten (10) Moderate Units that are to be rented to Low Income Tenants during such period (and owned by the entity which also owns the market rate Units). Until the last to end of the C ompliance Period and Extended Use Pe riod o r 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 Financ ing. 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 Compliance Period and Extended Use Period or Qualified Project, Period, whichever expires later, of any effect on the affordability level of their Affordable Units. Additionally, Owner and Affordable Housing Owner shall notify City in writing of any re-synd ication or extension of tax credit financing and any defeasance or refinancing of bond financing as soon as they become reasonably likely. · · 2. 13 Specific Enforcement of Affordability Restrictions. 2.13.1 Owner and Affordable Housing Owner hereby agree that specific enforcement of Owner's and Affordable Housing 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. 2.13.3Therefore, in addition to any other relief 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 aga inst it in the case of any event of default by Affordab le Housing Owner in complying with the 360 allowab le rent, occupancy restrictions or any other provision of this Agreement. Nothing herein shall impair City's rights to liquidated damages under Section 6.4 be low. 2.14 [INTENTIONALLY OMITTED] 2.15 Reporting Requ 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 , whichever occurs later, Owner and Affordable Housing Owner shall prepare and submit to the City, on a quarterly basis , written reports, setting forth the rental activity for the previous month, and the current total number of Affordable Units occupied by tenants. · 2 .15.2 Commencing with the first full calendar quarter after ·the last pe riod covered by monthly reports pursuant to Section 2 .15.1 , Owner and .Affordable Housing Owner shall prepare a nd submit to the City, on a -quarterly basis, not later than the 15th day of each ca lendar quarter, a Certificate of Cont inuing Program Compl iance in a form substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and percentage of Affordab le Units in the Project· which were occupied by Very Low, Low and Moderate Income Tenants, or held vacant and available for occupancy by such Tenants during said period; and • {b} that to the knowledge of the Affordable Housing Owner, no default has occurred under the provi sions of this Agreement; and (c) such other information as may be requested in writing by the City Manager. · 2.15.3 Owner and Affordable Housing Owner shall prepare and submit to the City, on an annual bas is, a report in form and substance reasonab ly satisfactory to the City, not later than March 31st of each year for the preceding calendar year, summariz ing the vacancy. rate of the Affordable Units in the Project on a inonth-to- month basis for such calendar year. 2.15.4 Owner and Affordable Housing Owner shall also deliver to City from time to time any other information about the Affordab le Units and the rental thereof as may be reasonably requested in writing by City within ten (10) days after any such written request. · ART ICLE 3 OPERATIONS 3.1 [INTENTIONALLY OMITTED] 3.2 Management Agent. 3.2.1 The Project shall at all times be managed by the Owner or the Affordable Housing Owner or a single third-party management agent with demonstrated ab i lity to operate, and experience in operating, res idential housing including restricted affordable housing, in a manner that will provide decent, safe and sanitary residential faci lities to occupants thereof, including experience in complying with reporting requirements and occupancy restrict ions similar to those imposed upon the Project by 361 the tel')'lls of this Agreement. (There may only be one manager for the entire Project at any one time.} 3.2.2 The Owne r or t he Affordable Hous ing 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 personnel and other consu ltants and service providers to assist Owner 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 agen t not later than thirty (30} days prior to the effective date of such appointment. The Owner and the Affordable Housing Owner shall also subm it such add it ional information about the background , exp erience a nd financial condition of any proposed management agent a·s is reasonably requested by the City. 3.2.4 Upon the City's written request, the . Owner and the Affordable Housing Owner shall coope rate 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 ena.ble 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 Respons ibility. The following procedure shall be foll owed 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 direct supervision of an on-site management agent, or a res ident 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 and email address of the management agent (so that City may contact the management agent directly}, and shall cause the management agent or its personnel to be available on a twenty-four hour a day basis to respond to City inquiries . 3.4 Staffing Arrangements . Owner and Affordable Housing Owner shall provide for adequate on -site staffing of management personnel to manage the Proj ect in a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner shall provide such security services as may be necessary or appropriate for the Project. All hiring of on -site personnel shall conform to appl icable equal opportunity guidelines, without regard to race , religion, color, national origin or sex . All hiring materials will ind icate that the Project is an "Equal Opportunity Employer." Employment grievances, terminations and promotion s will be conducted according to personnel policies and 362 procedures whic h 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 Proj ect is not timely completed in accordance with the Schedule of Performance in the Development Agreement, the City may modify the development standards and to chang e the General Plan designation and zoning of the Property, and Owner and Affo rdable Housing Owner hereby waive any rights they might oth erwise have to se ek 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 existe nce prior to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Cha nge No . 2004-04 ("ZC 2004-04"). 3.6 Annual Community Services Fee . Upon the issuance of a Zoning Clea rance by the City for occupancy of the first un it of the Project, and on each anniversary thereof, Owner and Affordab le Housing Owner shall pay to City a single comrryunity 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 Deve lopment Agreeme nt). AR TICLE 4 MAINTEN ANCE 4 .1 Maintenance. Repair. A lterations . Owner arid Affordable Housing Owne·r shall maintain and preserve the Project and the Property in good condition and repair ar:id in a prudent and businessl ike 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 cond ition as good as existed prior to the damage. Owner and Affordable Housing Owner shall complete promptly and in a good and w orkmanli ke manner any improvements wh ich may now or hereafter be constructed as part of the Project and pay when due all claims for labo r performed and material furnished therefor. Owner and Affordable Housing Owner shall comply with all laws, ord inances, rules , regu lations, 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 requiri ng any a lteration or improvement to be made thereon . Owner and Affordab le Housing Owner sha ll ma intain grounds, sidewal ks, roads, parking, and landscaped areas in the Project (and on any ad jacent 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 w ho are properly identified as agents of the City, upon reasonable written notice and subject to reasonable security and safety procedures and rights of tenants in possession , on-site inspections and observation of such records of Owner and Affo rdable 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 rece ives the same level of maintenance and repair and upgrades or improvements as all other units in the Proj ect. 363 The Owner and the Affordab le Hous ing Owner shall conduct an ongoing maintenance program, which shall include the following: a . Scheduled pre'{entative maintenance and repair of installed equipment in accordance with manufacturers' recommendations. b. Routine repairs to kitchen appliances , electrical, plumb i ng and heating equipment. c . Preventative annual apartment inspections to regularly and consistent ly ascertain the condition of each apartment unit. p. Preventative regula r inspections of common areas and equipment as well as regular schedules (dai ly, 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 ma inta 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 w ith high quality apartment management practices. e. Contract \Yith 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 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 i n the Project 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 respons ible for maki ng 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 fo rce and effect for the Term. ARTICLE 6 DEFA ULT AND REME DI ES 6.1 An Event of Default. Each of the following shall constitute an "Event of Defau lt" by the Owner hereunder: 364 6.1.1 Failure by the Owner or Affordable Housing Owner to duly perform, comply with and observe the cond it ions of Project approval, conditions , terms , or covenants of the Deve lopment 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 here in 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 def~ult is given or such longer period as may be agreed upon by both parties in writing. If a d ifferenl period or notice requirement is specified under any other section of this Agreement, then the specific provision shall control. 6.1.2 Failure by Owner and the Affordable Housing Owner to cure any default under Section 2.15 within fifteen (15) business days after written not ice ·of such default by City. . 6.1 .3 Any representation or warranty contained in this Agreement or in any application , financial statement, certificate , or report submitted to the City by Owner or Affordable Housing Owner proves to have been incorrect in any material respect when made,. if such fai lure remains uncured thirty (30) days after written notice of such failure from City to Owner in the manner provided herein or, with respect to a default that cannot be cured within thirty (30) days, if the Owner and the Affordable Housing Owner fail to commence such cure within such thirty (30) day period or thereafter fail to diligently and continuous ly proceed with such cure to completion. 6 .1.4 A court having j urisdiction shall have made or rendered a decree or order (a) adjudging Owner or Affordable Housing Owner to be bankrupt or insolvent; (b) approving as properly filed a petition seeking reorganization of Owner or Affordable Housing Owner or seeking any arrangement on behalf of the Owner under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state or other jurisdiction which is not dismissed within sixty (60) days after fil ing ; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of its properties which (or who) is not discharged within sixty (60) days after its appo i ntment; or (d) directing the winding up or liquidation of the Owner or Affo rdable Housing Owner, providing , however, that any such decree or order described in any of the forego i[lg 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 c reditors or suffe red a sequestration or attachment or execution on any substantial part of its property , unless the property so ass igned , sequestered , attached , or executed upon shall have been returned o r released with in ninety (90) days after such event (unless a lesse r time period is pe rmitted for cure hereunder) or prior to sa le pursuant to such sequestration , attachment, or execution. If the Owner or Affordable Housing Owner is diligently working to obtain a return or 365 release of the property and the City's interest hereunder is not i mminently threatened in the City's reasonable business judgment, then the City shall not declare a default under this subsection . 6.1.6 The Owner or Affordable Housing Owner shall have voluntarily suspended its business for a period of. thirty (30) consecut ive days or dissolved and a subsequent owner has not assumed the obl igations of Owner or Affordable Housing Owner {if appl icab le) in acco rdance with this Agreement. 6.1 .7 Shou·ld any default be declared by any lender under any loan document or deed of trust relating to any loan made in connection with the Proj ect or Property, which loan is secured by a deed of trust or other instrument of record, and is not cured within the applicab le cure pe riod, if any , granted in the app licable loan documents. 6.2 Liens. 6.2.1 This Agreement shall be senior in prio rity to any lien or encumbrance on the Property {other than the Development Agreement) and all liens and encumbrances shall be subordinate and st,ibject to this Agreement, regard less of actual date of recordation. The City shall cons ider in good faith, reasonable modifications of this Agreement typically requ ired 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 cont ain or require any subordination of provisions of this Agreement. 6.2.2 Owner and Affordable Housing Owner shall pay and promptly discharge when due, at their cost and expense , all l iens, 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 th is 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 d'oes not postpone payment for more than forty-five (45) days after the performance thereof. Owner and Affordab le Housing Owner shall have the right to contest in good faith the validity of any such lien , encumbrance or charge , provided that within ten (10) days after service of a stop notice or ninety (90) days after record ing of a mechanic's lien, Owner or Affordable Housing Owne r 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 amouQt required to .release the lien under California law and prov ided further that Owner or Affordable Hous i ng 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 prio r to any foreclosure sa le. If Owner or Affordable Hous ing Owner shall fai l either to remove and discharge any such lien, encumbrance or charge or to . ' 366 deposit security in accordance with the preced ing sentence, if applicab le, 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 t he val idity of such lien, encumbrance or charge nor into the ex istence of any defense or offset thereto , either by paying the amount claimed to be due, or by procuring the discharge of such lien, encumbrance or charge by depositing in a court a bond or the amount or otherwise giving security for such claim , in such manner as is or may be prescribed by law. Owner and Affordable Housing Owner shall , immediately upon written demand thereof by City, pay to City an amount equal to all costs and expenses incurred by City in connection with the exerc ise by City of the forego ing right to d ischarge any such lien, encumbrance or charge . To the extent not paid, all costs and expenses pa id by the City shall t;>e a lien on the Property pursuant to Civil Code Sect1on 2881. 6 .3 Costs of Enforcement. If any Event of Default occurs, ahd is continuing , City may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, the non -prevail in g 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 secu red he reby includ ing w ithout limitatio n, recording fees , receiver's fees arid expenses , and a ll 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 includ es the filing of a lawsuit. 6.4 Enforcement of this Agreement: Remedies. Upon the occurrence of any Event of Default by Owner or Affordable Housing Owner, City shall be entitled to enforce performance of any obligation of Owner or Affordable Housing Owner arising under this Agreement and to exercise all rights and powers under th is Agreement or any law now or hereafter in force. Addit ionally, without limiting any of City's other rights or remedies , upon any leasing of a particular Affordable Unit in violation of this Agreement, then Affordable Housi ng 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 Affordab le Housing Owner and Owner, in addit ion to enforcement costs and any other damages to which City may be entitled, all rent charged by Owner in excess of the renta l amounts permitted under this Agreement, with interest thereon from the date paid to Affordable Housing Owner until the date paid by Affordab le Housing Owner to City at the lesser of eight percent (8%) per annum or the maximum rate pe rmitted by law. Affordable Housing Owner and Owner stipulate, acknowledge and agree that the amounts described herein are reasonable estimates of the minimum damages incurred by the City and public as a result of violalion(s), and that actual damage would be impractical or imposs ible 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 add ition 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 th is Agreem ent to the City may be exercised , concurrently or independently, from tim e to time and as often as may be deemed expedient by the City, and the City may pursue inconsistent remedies. The 367 City shall have the right to mandamus or other suit, action or proceeding at law or in equity to requ ire the Owner and the Affordab le Housing Owner to perform its obligations and covenants under this Agreement or to enjo in acts or things which may be unlawful or in violation of the provis ions hereof. ARTICLE 7 GENERAL PROV ISIONS 7 .1 Notices. All not ices, certificates or other communications required or permitted hereunder shall be in writing and shall be delivered by certified mail, postage prepaid, or by reputab le overn ight messenger service, addressed as follows: If to the City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attention: Ciiy Manager If to the Owner or the Affordable Housing Owner: ESSEX MOORPARK OWNER. LP. Attention: John D. Eudy 1100 Park Place, Suite 200 San Mateo, CA 94403 With required copies to: ESSEX PORTFOLIO, L.P. Attention: Jordan Ritter 1100 Park Place, Suite 200 San Mateo, CA 94403 and ESSEX MOORPARK OWNER, L.P. Attention: Bob Linder 17541 Derian Avenue, Suite 110 Irvine, CA 92614 Either party may change its address for notices by a written notice · given in accordance with this Sectio n. Notices shall be deemed given on the date of actual delivery or refusal to accept delivery as s hown 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 Re lationship of Parties. Nothing contained in this Agreement shall be interpreted or unde rstood by any of the part ies, or by any third persons , as creating the relation·ship of employer and employee, principal and agent, limited or general partnership , or joint venture between the City and the Owner or the City and the 368 Affordable Housing Owner, or the City and any agents, employees or contractors of ihe 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 wh ich ii or its agents, o r 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 reta in the right to exercise full control of employment, direction, compensation and discharge of.all persons assisting in the perfo rmance 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 lding and all other laws and regulations governing such matters. The Owner and the Affordaole Housing Owner each agrees to be solely responsible for its own acts and those of its agents and employees. 7.3 No Claims. Noth ing contained in this Agreement shall create or justify ar:,y 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 perfonnance of any work or services with respect to the operation of the Project or the Property. 7.4 [INTENTIONALLY OMITTED] 7 .5 Limitation of Liabil ity. 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 Affordab le Housi ng Owner, or any successor i n 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 tenns of this Agreement. No member, official, emp loyee, 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 whic;h may beconie 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 exc lusively thereto, or to such other security as may from lime 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 perta ining to this Agreement), shall be rendered aga inst Owner or Affordable Housing Owner, or their assets (other than the ir interests in the Project, and this Agreement), in any action or proceeding arising out of this Agreement. 369 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 majeu re. As used herein "force majeure" shall mean a delay in performance hereunder due to.acts of God, fire , earthquake, f lood , extreme weather cond itions, explosions, war, invasion, insurrection , riot, mob vio lence, sabotage , acts of terrorism, vandal ism, malicious mischief, inability to procure or general shortage of labor, equipment, facilities , materials or suppl ies in the open market, failure of transportation, strikes, lockouts, actions of labor unions, third party litigation, , requisition , governmental restrictions including, without limitation , inability or delay in obtaining government consents or permits, laws or orders of governmental, civil , military or naval authorities, or any other cause, whether similar or dissimilar to the forego ing , not within the party's contro l, other than lack of or inability to procure monies to fulfill its ~ommitments o r ob ligations under this Agreement. , 7 .7 Indemnification of City. Except with respect to claims that arise solely from negligence, fraud or willful misconduct by the City or its officers , employees or agents , Owner and the Affordable Housing Owner shall defend, indemnify and hols:J City harmless from and against any and all claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from, or re lating directly or indirectly to: (i) any failure by Owner or Affordable Housing Owner to comp ly with the terms of this conde m nation Agreement; (ii) the construction , maintenance, alteration or operation of the Project; (i ii) any negligence or willful misconduct by Owner, Affordable Housing Owner or any of their employees , agents, contractors , licensees, invitees or tenants on the Project or the Property . 7 .8 Rights and Remedies Cumulative. Except as otherwise express ly stated in this Agreement, fhe rights and remedies of the parties are cumu lative, 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 impl ied from any omission to take action on account of such default if such default persists or is rep eated , 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 shalrnot be construed as a waiver 6f 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 requ ir ing further consent or approval shall not be deemed to waive or rende r unnecessary the consent or approval to o r of any subsequent simi(ar act. The exerc ise of any right, power, or remedy shall in no event constitute a cure or a waive r of any defau lt 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 a s may be necessary or desirable to enforce perfo rmance and observance of any obligation, agreement or covenant of the Owner or Affordable Hous ing Owne r under this Agreement. No delay or omission to exercise any right or power accru i ng upon any 370 default shall impair any such right o r power or shall be construed to be a waiver of such right or power, but any such right or power may be exercised from time to time and as often as City may deem expedient. In order to entitle the City to exerc ise any remedy reserved to it in this Agreement, it shall not be necessary to g ive 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, prov ision , 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 pr.ovis ions shall continue in full force and effect unless the rights and obl igations of the parties have been mate rially altered o r abridged by such invalidation, void i ng 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 recove r against the party not prevailing all reasonable attorneys' fees and costs incurred in such action (including, without lim itation, all reasonable legal fees incurred in any appeal or in any action to enforce any resu lting judgment). 7 .12 Binding Upon Successors: Assignment by City. This Agreement , and. the exhibits attached hereto, shall run with the land and be bin.ding 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 i n th is Agreement to Owner or Affordable Housing Owner shall be deemed to app ly 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 forego ing, City may assign this Agreement to the A rea Housing Autho rity of the County of Ventura 6r any other housing authority creat ed by City or in which City is a member. · · 7.13 Binding Effect: Successors and Assigns . Owner and Affordable Housing Owner each covenant and agree for itself, and .its successors and assigns and every successor in interest to any portion of or interest in the Project that it and its successors, assigns and successors in int erest shall comply w ith all of the terms , provisions, easements, conditions, covenants, restrict ions, liens, and servitudes set forth in this Agreement. This Agreement is inte nded to bind the Project and Property "run with the land". 7.14 Transfers. Owner shall provide the City with prompt notice of any conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the applicable deed. Owner shall provide the City with at least thirty (30) days' prior written not ice 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 requ ired for any transfer of Affordable Units to an entity of wh ich the Essex Portfolio, L.P. or any affiliate thereof, directly or indirectly, owns or controls the entity to wh ich the transfer will be made, provided that the City is given a copy of the Assignment and Assumption 371 Agreement and organizationa l documents that prove the entity is such an affiliate of Essex l?ortfolio , L.P . 7.15 Time of the Essence. In all matters under this Agreement, time is of the essence. 7.16 Complete Understanding of the Parties. The Project Approvals and this Agreement constitute the entire understanding and agreement of the parties with respect to the matters described herein and the rein. 7.17 Construction and Interpretation of Agreement. The parties hereto ack nowledge 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 considerab le period of time, that each party has rev iewed 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 sha ll 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. Venu~ for any action brought under this Agreement will be in the Superior Court for the County of Ventura, California or in the United States District Court for the Central District of California. Owner and Affordable Housing Owner each hereby accepts for itself and in respect to its property, generally and unconditionally, the non-exclus ive jurisdiction of the foregoing courts. Owner and Affordable Housing Owner each irrevocably consents to the service of process in any action or proceeding by the mailing of copies thereof by registered or certified mai l, postage prepaid , to Owner and Affordable Housing Owner at its address for notices pursuant to this Agreement. Nothing contained herein shall affect the right of the City to serve process in any other manner permitted by law. · 7 .19 Hazardous Materials. 7 .19.1 Definitions. The following special definitions shall apply for. the purposes of th is 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 ; 372 (2) any "hazardo us water," "i nfectious waste" or "hazardous material" as defined in Section 25117, 25117.5 or 255010) of the Californ ia 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. Sect ion 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 add itional wastes, substances or materia l wh ich at such time are c lassified, considered or regu lated 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 d irectives pertaining to Hazardous Materials, in, on or under the Project, the Property of any portion thereof. 7.19.2 Certain Hazardous Materials Covenants and Agreements. The Owner and Affordab le Housing Owner hereby agree that: . (a) Ne ither shall knowing ly permit the Project, the Property or any portion thereof to be a site .for the use, generation, treatment, ma nufacture, storage, disposal or transportation of Hazardous Materia ls 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 maierial.s, gardening materials, household products, office supply products, or janitorial supply products customari ly 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 comparab le to the Project; or (2) certain substances which may contain chemicals listed by the State of California pursuant to Health and Safety Code Section 25249.8 et seq., which substances are commonly used by a significant portion of the population living within ttie reg ion of the Project, including (without limitation) a lcoholic 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 i n violat ion of, any Hazardous Materials Laws. (c) Upon receiving actual know ledge of the same, t he Owner or Affordable Housing Owner shall immediately advise the City in writing of: (1) any and all enforcement, cleanup, removal or other governmental or regulatory actions instituted, 373 completed or threatened aga inst the Owner or the Proj ect or the Property pursua nt to any applicab le Haza rdous Materials Laws ; (2) any and all claims made or threatened by any third party against the Owner or Affo rdable Housing Owne r or the Project or the Property relati ng· to damage, contribution , cost recovery, compensation , loss o r injury resu lting from any Hazardous Materials (the matters set forth in the forego ing clause (1) and this clause (2) a re hereinafter referred to as "Hazardous Materials Claims "); (3) the presence of any Hazardous Materials in, on cir under the Project or the Property; or (4) the Owner's or the Affordabl e Housing Owner's discovery of any occurrence or condition on any real · property adjoining or in the v icinity of the Project class ified as "borderz one property" under the provis ions of California Hea lth and Safety Code, Section 25220 et seq ., or any regu lation adopted in accordance therewith, or to be otherwise subject to any restrictions on the ownership , occupancy, transferab ility 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, ho ld harmless and defend (by counse l reasonably approved by the City) the City, and its City Council membe rs, officers, employees, contractors , agents and attorneys from and aga i nst any and au claims , losses, damages, liabilities, fines, penalties, c harges , administrative and jud icial proceedings and orders, judgments, remed ial action requirements, enforcement actio ns of any kind , and all costs and expenses incurred in connection the rewith , including , but not limited to , reasonable attorneys' fees and expenses(collective ly , a "Loss"), arising directly or indirectly, in whole or-in part, out of (1) the failure of the Owner or the Affordable Housing Owner, as applicable, or any other pe rson or entity occupyi ng or prese nt on their respective interest in the Project or Property , to comply with any Hazardous Materials Law re lating . in any way whatsoever to the handling, treatment, presence , removal, storage, decontamiriation , 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 Owne r or the Affordable Housing Owner or any employees , agents, contractors or subcontractors, or any third persons at any time occupying or present on the Project or the Property, in connection with the handling, treatment , ·removal, storage, decontamination, c leanup, transport or disposal of any Hazardous Materials at any time located or present on or under the Proj ect or the Property. The foregoi ng inde m nity shall further apply to any residual contam ination on or under the Proj ect or the .Property, or affecting i3ny natural resources , and to any contami nation of any property or natural resources arising in connection with t he generation , use , handl ing , treatment, storage , transport or disposal of any such Hazardous Materials on , und er, or from the Project or the Property, and irrespective of whethe r any of such activities were or will be undertaken in acco rdance wit h Hazardous Materials Laws . However, the forego ing indemnity shall not extend to the portion of any Loss aris ing from the gross negl igence , fraud or willful misconduct of the City or anyone for whose actions the City is legally liable. This Section shall survive te rmination of this Agreement. 374 7.19.4 No Limitation. Owner and Affordable Hous ing Owner hereby ac knowledge and agree that their duties, obligat ions and liabilities under this Agreement are in no way limited or otherwise affected bY any infonnatibn the City . may have concerning the Project or the Property and/o r the presence within the Project or the Property of any Hazardous Mate rials, whether the City obtained such infonnation from Owner or Affo rdable Housing Owner or from its own investigations. 7.20 Insurance Requirements. 7.20.1 Required Coverage. Owner and Affordable Housing Owner shall ma intain and keep in force, at their sole cost and expense , the following insurance for the ir 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) Comprehens ive general liability insurance with limits not less than two million dollars ($2,000,000) for each occurrence, comb ined si ngle lim it 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 reco rdation 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) Comprehens ive automob ile 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 percerit (10%) of the the·n-current l imit. · (c) Worker's compensation insurance , fidelity bonds and/or such other insurance coverage which is ordinarily and customarily ma intained on like kind and sized apartment projects within the City . . (d) A po licy 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 i n.eluded in extended · coverage casualty insurance policies. In addition, if Owner or Affordable Housing Owner carries cove rage voluntarily for additional causes (such as earthquake, riot, civil commotion or other), such coverage shall be treated in all respects as the policy or polic ies required to be kept under this pa ragraph (d) for so long as it continues to voluntarily carry such coverage. All insurance hereunder, except earthquake insurance, shall be maintained in an amount not less than one hundred percent (100%) of the Full Insurable Value of the Project as defined below (such val ue 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 be low the ground level of the Project. To ascertain 375 the amount of coverag.e required , Owner and Affordable Housing Owner shall cause the Full Insu rable Value to be determi ned from time to t ime, but in no event less often than once each five (5) years, by appraisal by the insu rer or by any appraiser mutually acceptable t o. City, Owner and Affordable Hous ing 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 requ ired by this Section shall be provided under an occurrence form , and Owner and Affordable Hous ing Owner shall maintain such coverage continuously so long as this Agreement is in force. Should any of the requi red insurance be provided unde r .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 a nnual aggregate limit shall be one and one-half times the occurrence limits specified above. All po l icies 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 the re be none, an organization having a national reputat ion) as h.aving a "Best's Rating" of "A " and a "Financial Size Category" of at least "VII " or if such rati ngs 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 liabil ity po li cies shall also be en.dorsed to name as additional i nsureds· the City, and its qty Council members, officers , agents and emp loyees. All policies shall be endo rsed 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 t he City's request at any time during the Term of this Agreement, Ow ner and Affordable Housing Owner shall prov ide certificates of insurance, i n form and w ith insurers reasonably acceptable to the City; evidencing comp li ance w ith the requ irements of this Sect ion , and sha ll provide complete cop ies 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 bu rden of the covenants set forth herei n touching and conceming 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 bo nd issuance . 376 7 .23 No Th ird Party Beneficia ries. This Agreement shall not benefit or be enforceable by any person, or firm , or corporat ion , p ublic or private, except the City, Owne r, Affordable Housing Owner and their re spective successors and ass igns. 7.24 Counterparts. This Agreement may be executed in counterparts, which together will be one agreement. 7 .25 Assessme nt Dist ricts: Covena nt and Waivers. Owner and Affordab le Housing Owner agree to cast affirmative ballots for the increase of a ny assessment for existing assessment districts for the maintenance of parking and median landscaping, st reet lighting and parks conferring special benefits, and for t he 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 s uch assessments or any assessment increases. lh the event that any such assessment _dfstrict 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 . ART ICLE 8 IN CORPORATI ON OF CERTAIN DEVELOPMEN T AGREEME NT PROV ISIONS T he 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 here in to clarify that they survive the expiratio n of the Development Agreement (but, except for Sections 8.1, 8.4 and 8.7 , such provi.sions will not survive a ny earlier termination of the Deve lopment Agreement due to a default by the "D~veloper'' 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 Housi ng Owne r under the following (except for obligations there under arising prior to termination and Sections 8.1, 8.4 and 8. 7) shall terminate upon any early terminati on of the Development Agreement due to a default by Owner or Affordable Housing Owner thereunder. 8.1 No Other Separate Conveyance of Affordab le Un its. After the initia l conveyance by Owner to Affo rdable Housing Owner of Affordable Units , Owner and the Affordable Housing Owner and their success ors in interest shall not convey thei 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 (wh ich will 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 record (i) a separate agreement (i .e ., a covenant and agreement to hold property as one parce l) imposing the forego ing restriction on the Property , which shall be subject to the written approval of City , and (ii) "co nditions, 377 • covenants and restrictions" for the Project ("CC&R 's"), which shall also be subject to the written approval of City. Such sepa rate 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 provis ions shall govern the subd ivis ion , developmel)t and use of the Property. 8.2.1 Permitted Uses . The permitted and condit ionally pe rmitted uses of the Property shall be limited to those that are allowed by the Proj ect Approvals and the Developme nt Agreement. · 8.2.2 Developme nt Standards. All design and development standards, including but not limited to density or intens ity of use and max imum height and size of buildings, that s hall be applicable to . the Property are. set forth in the Proj ect Approvals and the Development ~greement. 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 pe rmit is approved per Title 15 of the Moorpark Municipal Code a nd to any federal or state build i ng requirements that are then i n effect (collectively "the Building Codes"). . . 8.2.4 Reservations and Dedications. All reservations and ded ications of land for publ ic purposes that are applicable to the Property are. set forth in the Proj ect Approvals and the Development Agreement. 8.3 Dens it ies Allowed for Development. Owner and Affo rdable Housing Owner agree that densities vested and incentives and concess ions received in the Project Approvals include all densities available as dens ity bonuses and · all incentives and concessio ns to wh ich Developer is entitled under the Moorpark Municipal Co(le, Government Code Sections 65915 through 65917.5 or both; neither Owner nor Affordable Hous ing Owner shall be entitled to further density bonuses or incentives or concessions and further agrees that its exE1cution of and complia nce with th is Agreement is in consideration for the density bonus obtained through the Proj ect Approvals that is greater than would otherwise be avai lab le. Residential Planned Development Permit No. 2012 -02 , includ ing the special cond itions that incorporate and inc lude 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 bui lding permit or the approval of any final map for the Project: (a) Owner and Affordable Housing Owner shall pay the Cfty a s i ngle Five.Thousand Dollar ($5,000) Assessment Dist rict Formation Fee; and (b) either two Assessment Districts (one fu lly funded and a second "back-up" district) o r 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 . T he first Distri ct out of th e two Districts or the first zone of the one District , whichever is 378 applicable, shall be for the purposes of funding future costs for the ma intenance . landscaping and irrigation of the landscaped area above the retain ing wall along the southern perimeter of the Property and th e maintenance of the storm wate r quality basin and drainage improvements, includ ing bas in la ndscaping and irrigation . The second District or second zone of the District , whichever is applicable, sha ll be for the maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and Project slopes adjace nt to the Walnut Canyon School, the maintenance of the storm wate"r basin access drive and the emergency access drive . It shall be the 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 an nua l renewal of the Assessment District or Districts, and any costs re lated to such administration s hall 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 Affo rdable Housing Owner sh all pay the funds required to the Assessment District within five (5) business days after written demand from the Assessmen t District from time to time. Owner and Affordable Ho using 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 Affo rdab le Housing Owner agree that any fees and payments pu rsuant to the Deve lopment Agreement, this Agreement and for RPD 2012 -02 shall be made without-reservation , and De veloper expressly waives t he right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary theret9 . 8.6 Req uired 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 spa.ces shall be designated and reserved for each of the 2-bedroom and 3- bedroom un its , a nd one space sha ll 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 (whethe r or not th ey are Affordable Units). Owner and Affordabie 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 cha nge the General Plan designation and zoning of the Property upon the termination or expirat ion of the Development Agreement (if the Project has not been built), and Develope r 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 zon ing to those 379 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 cla ims, liabilities, losses, damages, costs and expenses ·arising from any activity by Owner or Affordable Housing Owner or the contractors of either of them . 8.9 Storm · Water/Flood Detention Basin . City agrees that Owner and Affordable Housing Owner may use the storm water/flood detention basin located on the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Owner and Affordable Housing Owner to that effect; however, C ity may e lect by written notice to Owner and Affo rdable Housing Owner to rel9cate 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 C ity 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 projected in good faith by City, to ensure payment of the costs, and every two (2) years the amount of the bond shall be increased (by amendment or by a replacement bond) by the percentage increase over the applicable two year period in the Caltrans Highway Bid Price Index for Selected California Construction Items, as determined in good faith by the City Manager. WHEREFORE, the parties have executed this Ag reement as of the date first- above written. C ITY: CITY OF MOORPARK By:--,-,-----------Print Name: _________ _ Title: ___________ _ 380 OWNER: ESSEX MOORPARK OWN ER, L.P., a California limited partnership By: Essex Moorpark GP, L.P., a Ca l ifornia limited partnership, its general partner By: Essex Management Corporation, a Cal ifornia corporation , its general partner By: ________ _ Print Name: _____ _ Title: ________ _ 381 A notary public or other officer comp leti ng this certificate verifies only th e identity of the indiv idual who signed the documen t to which th is certificate is attached , and not the truthfulness , accuracy, or val idity of tha t document. State of California County of Ventura ) ) On ___________ , before me,-----------~ Onsert name a nd lille o f lhe 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 in_strument 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. _____________ _ (Sea l) 382 A notary public or other officer completing th is certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accu racy, 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) 383 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 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, 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 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. 384 EXHIBIT NO. 2 TO AFFORDABLE HOUSING AGREEMENT . TYPE OF UNIT, NUMBER OF UNITS, HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE; Very Low Income Type of Unit 1-br . 2-br/2 bath 3 -br Total 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 LOCATIONS OF AFFORDABLE UNITS . Number of Units 8 7 1 16 Number of Units 11 12 1 24 Household Size Adjustment 2 persons 3 persons 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 ~roject) Number of Units 0 5 Q 10 Household Size Adjustment 2 persons 3 persons 4 persons Utility Allowance $156 $175 $199 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 regard less of actual household size. The Affordable Housing Owner may not charge additional rent based on a larger actual household size. Illustration : For example, the maximum rent for a Very Low Income Household renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura County median income for a household of three divided by 12, less the utility allowance. 385 Illustration: For example , the max imum 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 househo ld of three divided by 12, less the utility allowance. Illustration : For example , the maximum rent for a Moderate Income Household renting a 2-bedroom unit would be calculated as follows : 30% x 110% x the Ventura County median income for a household of three divided by 12, Jess the utility allowance. Utility Allowances will be adjusted annually using the most current "Allowances for Tenant Furnished Uti lities and Other Services " (form 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 appliances/utilities to be provided to the uriits: Natural Gas -Heating, cooking, water heating Water, Sewer, Trash , Othe r Electric allowance (for lights and other electric uses) Locations of Affordable Units (Including Handicapped-Compliant Units) The Affordable Units (including handicapped -compliant units) shall be located as shown on the site plan attached hereto . 386 'It. , s I. --. l ~ I -= .. ,II ! ' i a : .. : ~ i I I '--lei I ...... 1 ..... .... ,_ a: 0 w ., z: .... .... .. ... "" .... .... .. .. w ' 0.. ! "" 0 l :\ .. .. ;,. .., ..... I :I 0.. I ' . -.; .. \. oo ." I• I c 1 ~ l~i ,_, 0 1 ...... -"i z::u..1 i ht 387 :i ·.~ llliY,J ' .l'l!S 'f ~ rt1 § I ~! Uh; :2 -=~ ~ Ii :5 l:! ~ -~ = - =• _, -· ;; !I z . ::5 -. i: =·· I ----.. ... ~ .. _j ,c -_fi -... _ ... -.. -=Ii ~! .. -:5l! -.. --.. ----0 r .. -l .. --.. ... ~.} 0 :::: o,_ ,;: :c:~ Id 388 t: s ----= => -~ :c ---... ... -.... ... -.. .. 0 • : :: .. I a. i ec: ~!, f 0 ~!~i! 0 ->/•!1 . :c ...., s. I 389 EXHI BIT NO. 3 T O AFFORDABLE HOUSI NG AGREEMENT FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY New Certification _____ / Recertif ication ____ _ Unit Number ___ _ I NCOME COMPUTATION AND CERTIFI CATION NOTE TO APARTMENT OWNER: This form is designed to assist you in computing Annual Income Re: (NAME and A DD RESS o f Apartment B u ild in g) To: I/We the undersigned state that I/we have read and answered fully, fra nkl y 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 be low are the names of all persons who intend to res ide in the unit: 1. Name of Members Of the Household Income C omputation 2. Relationship to Head of Household 3. Age 4. Socia l Security Number 5. Place of Employment 6. The total anticipated income, calculated in accordance with this paragraph 6, of . all perso ns (except children under 18 yea rs) listed above for the 12-month period beginn ing the earlier of the date that I/we plan to move into a unit or sign a lease fo r a unit is$ _________ 1 If this form Is being completed in acoordance with reoertification of a Lower Income Tenant's or Very Low Income Tenanrs ocx:t1paney of a loy.,-er Income Unl or a Vory Low Income Unit. respectively, this fonn must be completed based upon the cunent income of the occupants. 390 Included in the total anticipated iricome li sted 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 t he operation of a business or profession. E xpend itµres for business expans ion or amortization of cap ital indebtedness shall not be used as deductions in determin ing net income. An allowances for depreciation of assets used in a business or profess ion may be deducted, based on stra ight line depreciation, as provided in Internal Revenue Service regulations . Any withd rawal of cash or assets from the operation of a business or profession will be inc luded 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. Expend itures for amortization of capital indebtedness shall not be used as deductions in determining net income . An allowance for depreciation is perm itted only as authorii:ed 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 fam ily has net family assets in excess of $5,000 , annual inco me shall include the greater of the actual income derived from all net fami l y assets or a percent age of the value of such assets based on the current passboo k savings rate. (d) the full amount of period ic payments received from Socia l Security, annuit ies, insurance policies, retirement funds, pensions , disability or death benefits, and other simi lar types of periodic receipts , including any lump sum amount except deferred period ic amounts from supplemental security income and social security benefits that are received in a lump sum amount or i n 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 . des ignated for she lter and utilities that is subject to adjustment by the welfare assistance agency in accordance with the actual cost of shelte r and utilities , the amount of welfare assistance income to be included as income shall consist of: ( 1) the amount of the all owance 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 fami ly for shelter and ut ilities. If the family's welfare assistance is ratably reduced form the standard of need by applying a percentage, the amount ca lculated under this paragraph shall be the amount res ulting from one app licat ion of the percentage ; 391 (g) periodic and determinab le allowances, such as alimony and child support payments, and regular contributions or gifts received from organizations or from persons not residing in the dwelling; (h) all regular pay, special pay and allowances of a member of the Armed Forces except the specia l pay to a family member serving in the Armed Forces except the spec ial pay to a family member serving in the Armed Forces who is exposed to hostile fire; and Excl uded from s uch ant icipated income are: (a) income from employment of children (including foste r chi ldren) 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 unab le to live alone); · (c) lump sum addit ions to family assets , such as inheritances , insurance payments (including payments under health and accident insurance and workers' compensation), cap ital 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 fami ly_ 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 Deve lopment; (2) amounts received by a person with a disabiliiy that are disregarded for a limited time for purposes of Supplemental Security Income elig ibility 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 pub licly assisted programs which are specifically for or in reimbursement of out-of-pocket expenses incurred (special equipment , cloth ing , transportation , child care , etc.) and which are made sole ly to allow participation in a specific program ; (4) amounts received under a resident service stipend is a modest amount (not to exce.ed $200 per month) received by a resident for performing a service for the 392 Public Housing Issuer or owne r, on a part-time basis, that enhances the quality of life in the development. Such serv ices may include, but are not limited to , fire patrol, hall monitoring , lawn maintenance, and resident initiatives coordination . No resident may receive more than one such stipend during the same period of time; (5) incremental earnings and benefits resulting to any family member from participation in qualifying State or local employment tra ining 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 w ith clearly defined goals and objectives, and are excluded only for the period during which the family member participates in the employment tra i ning program .· (i) temporary • nonrecurring or sporadic inco.me (including gifts); 0) repa ration 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 o r 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 wh ich 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 cap ital investment (excluding the values of necessary items of personal property such as furniture and automobiles and interests in Ind ian 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? 393 _____ Yes _____ No (c) If the answer to (a) or (b) above is yes , does the combined total value of all such assets owned or disposed of by all such persons tota l more than $5,000? _____ Yes _____ No (d) If the answer to (c) above is yes, state: (1) the combined tota l value of all such assets: $ --------- ( 2) the amount of income expected to be deri ved 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 un it 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 ma intains a regular faculty and curriculum and normally has a regu larly enrolled body of students in attendance or is an individua l 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 qf the unit a husband and wife entitled to file a joint federal income tax return? Yes No ---------- 9. Ne ither myself nor any other 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 "Owner"), has any fami ly re lationship 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 ownersh ip or beneficial interest in ·such corporation, partnership , estate or Trustee he ld by the ind ividua l or a fam ily member; and ownership , direct or indirect, by a partner of the individual. 10. This certificate is made with the knowledge that it will be · rel ied upon by the Owner to determine maximum income for elig ibility 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 reliab le and that ttie statement of total anticipated income contained in paragraph 6 is reasonab le and based upon such investigation as the undersigned deemed necessary. 394 11'. IN>Je will assist the Affordable Housing Owner in obtaining any information or documents required to verify the statements made herein, including either an income verification from my/our present employer(s) or copies of federa l tax returns for the immediately preceding calendar year. 12. IN>Je acknowledge that I/we have been advised that the -mak ing of any misrepresentation or misstatement in this declarat ion wi ll constitute a material breach of my/our agreement with the Affordable Housing Owner to lease the unit and will entitle the Owner to prevent or terminate my/our occupancy of ihe unit by institution of an action for ejection o r other appropriate proceedings. IN>Je declare under penalty of perjury that the foregoing is true and correct. Executed this ____ d.ay 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 requ ired] 395 FOR COMPLETION BY OWNER/AFFORDABLE HOUS ING OWNER ON LY: 1 . Calculation of eligible income: a. E nter amount entered for entire household in 6 above : $ ____ _ b . (1) If the amount entered in 7(c)above is yes, enter the tot al 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 savi ngs rate as determined by HUD to determine what the total annual earni ngs on the amount in 7(d)(1) would be if invested in passbook savings($ ______ _,, subtract from that figure t he amount ent ered in 7(d)(3) and enter th e remaini ng balance ($ (3) Ent er at ri ght the greater of the amount calculated under (1) or (2) above :$ __________ _ c. TOTALELIGIBLE INCOME (line 1 .a plus line 1.b(3)): $_· ______ _ 2. The amount entered in 1.c: Qualifies the applicant(s) as a Moderate-Income T enant(s). _______ Qualifies the applicant(s) as a Lower-I ncome Tenant(s). _______ Qualifies the applicant(s) as a Very-Low I ncome Tenant(s). 3. Number of apartment unit assigned: ____ Bedroom s ize: ____ _ Rent:$. _____ _ 4. This apartment unit (was/was not ) last occupied for a period of 31 or more consecutive day s by persons whose aggregate anticipated annual income as certifiecj i n the above manner upon their initial occupancy of the apartment unit qualified them as a Lower-Income Tenant(s). 5. Method used to verify appli cant(s) income: Employer income verification. Copies of tax returns. _______ Other( _______________ ) 6. Is occupant a C ity of Moorpark resident on the waiting list who was g iven priority? Yes :___ N o: __ _ Manager Date 396 l 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 Ass istance Security ment Pay and/or Supp. 1 2 3 4 & Salaries• from 1040 disability or Child (reg ular gift (YTD as of: (self workers Support from l employed) compensat person not ion pay living in unit) I (Al 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 mus t 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- $. _________ _ $ _________ _ $. _________ _ [@i TOTAL ASSET INCOME Sav ings Bonds u: $ __________ _ $ __________ _ •i ncludes rental income or equity if not rented only. Equity is the difference between the market value of the p roperty and the total dollar amount of any loans secured by the property. -ooes not include the personal property i .e., furntture or automobiles. ! TOTAL HOUSEHOLD INCOME (A+ B) [$ 397 INCOME VERIFICATION (FOR EMPLOYED PERSONS) The undersigned employee has applied for a rental unit located i n a project financed under the Mu ltifamily 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, comm issions or any other form of compensation rece ived on a regular basis. EMPLOYER Annual Overtime Bonuses Commissions Wages Current Base Pav (Gross) Other Income Avg. Total Hours Worked Weekly T otal Current Income _______ _ Year-to-Date Income _______ _ I Pay Period: [) Weekly I [ ) Bi-weekly I I ) Monthly I [ j Other Do you anticipate an increase in 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 EMPLOYER: This form is an estimate of anticipated earn ings 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 o r raises. I hereby certify that the statements above are true and complete to the best of my knowledge. Date Emplo ye r S ignature T itle Emp loyer's Address Employer's Phone Numb er APPLICANT 398 hereby grant you perm1ss 1on to disclose my income to ______________ in order that they may determine my income eligibi lity for rental of an apartment located in their project which has been f inanced under the Multifamily Revenue Bond Program. Date Print Name (Resident) Please send to : (Management Co. or Owner) Signature (Resident) 399 IN COME VERI FI CATION (fo r self -em p loyed persons) I hereby attach copies of my individual fede ral and state income tax returns for the immediately preceding calenda r year and certify that the information shown in such income tax returns is true and complete to the best of my knowledge . Signature Date 400 INCOME VERI FICATI ON (for Social Security recipients) TO : SOCIAL SECU ~ITY ADMINISTRATION Ladies and Gentlemen: I have app lied 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 re lease to __________________ the specific information requested be low : Date : ___________________________ _ Signature: __________________________ _ Socia l Securl ty No.: _________ _ Name (Print): ____________ _ Address(Print), _______________________ _ Monthly Benefits Began/Will Begin: Social Security Benefit Amount: $. ____________________ _ Other Benefit(s): ________ _ Amount:$ __________ _ Medicare Deductions: $ __________ _ Are be nefits expected to change?[ ) Yes [ ] No If yes , please state date and amount: Date : __________ o.f change Amount$ ________ _ 401 If recipient is not receiving full benefit amount; please indicate reason and date recipie nt will start receiving full benefit amount: Reaso n: Date of Resumption: . Amount: _______________ _ Date: Signature: Title: Please send form to: 402 INCOME VERIFICATION (for Department Socia l 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 incom e . 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: _________________________ _ Caselo ad 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 incom e 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 reaso n: [ ) Overpayment due to client's failure to report other income I I Computation error I l Other: ________________________ _ 403 Date when full grant will resume : ___________________ _ Date:. _____________ _ Case Worke r's Signature:. ________ _ Telephone: ___________ _ District Office: ____________ _ Your very early response w ill be appreciated . Please return fo rm to: 404 DECLARATION OF NO I NCOME 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 el igibility. 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 inc l ude, but are not limited to the following: Employment Study Pensions Unemployment Self Emp loyment General Ass istance Compensation AFDC Disability Social Security SSI Union Benefits Workers Compensation Retirement Funds Family Support Child Support Alimony Annuities Education GrantsM/ork 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 c1lso understand that fa lse statements or omiss ions are grounds for disqualificatio·n and/or prosecution under the full extent of California law. Signature Date Witness Signature Date 405 Support Verification Source 's Mailing Address: Phone#: ________ _ Fax#: __________ _ Recipient: Federal law requires that we verify the annual income of all persons applying for admiss ions to or liv ing in a commun ity 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 eligib ility and/or rent computat ion . You will notice a release of information is authorized by the applicant/tenant's signature be low. Your assistance in completing this form accurately and timely is greatly apprecia ted ! Applicant/Tenant Release Sta te ment Applicant/Tenant Name: I hereby authorize the release of the following information in order to determ i ne my eligibi l ity for the Bond Program. Please comp lete the form in full and return it to the MANAGEMENT COMPANY at your earliest convenience. Signature: _________________ _ Soc ial Security#: ______ _ 406 Please complete the following . If the monies are based on a percentage of the payer's income, please indicate the average amount per period . Tvne of Benefit Amount Frenuencv I l Child Support · ( ) weekly ( ) monthly ( ) vearlv [ I Family Support ( ) weekly ( ) monthly ( ) yearly I I Alimony ( ) weekly ( ) monthly ( ) yearly I I Ot~er ( ) weekly ( ) monthly ( ) (Please list -yearly type) Are monies paid to offset an AFDC grant? [ ] Yes [ ] No Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No Comments: -------------------------- Signature of Source: --------------SSN#: _______ _ Date Completed Form:. ____________ _ 407 EXH IB IT NO. 4 TO AF FORDABLE HOUSING AGREEMENT CERTI FICATE OF CO NTINUING PROGRAM COMPLIANCE FOR TH E [MONTH/QUARTER] ENDING __ _ The und ersigned , ____________ , as the authorized representative of __________ (the "Affordable Housing Own er"), has read and _is thoroughly familiar with the provisions of the Affordable Housing Agreement by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the C ity of Moorpark (th e "C ity"), dated as of ________ ., 2017. As of the date of this Certificate, the following numbers of completed residential Units in the P roject (i) are occupied, or (ii) are currently vacant and being held available for such occupancy and have been so held contin uous ly since the date a Very Low Income Tenant o r Low Income Tenant vacated such Unit, as indicated: Occupied by Very Low Income Tenants Number of Units: ------------ 0 cc up i e d b y Low Income Tenants Number of Units: ___________ _ Occup ied by Moderate lricome Tenants Number of Units: Held v acant for occupancy continuously since last occupied by Very Low Income Tenants and Low Income Tenants: Vacant Units N umber: ________ _ 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.: ----------------------- 408 Low Income: Units Nos. _______________________ _ Moderate Income: Number of Units: Attached is a separate sheet (the "Bond Program Report") listing, among other items, the following information for each apartment Unit in the Project: the number of each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the size and number of bedrooms of each Unit. It a lso indicates which Units are occupied by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants and which Units became Low Income Un its and Very Low Income Units and Moderate Income Tenants durin'g the preceding [month/quarter]. The information contained thereon is true and accurate. The undersigned hereby certifies that (1) a revi_ew of the activities of the Owner and Affordable Housing Owner during such [month/quarter] and of Owner's and the Affordable Housing Owner's performance under the Affordable Housing Agreement among Owner, Affordable Housing Owner and the City , has been made under the supervision of the undersigned; and (2) to the best of the knowledge of the undersigned , based on the review described in clause (1) hereof, the neither the Owner nor the Affordable Housing Owner is in default under any of the terms and provisions of the above documents [or describe the nature of any default iri detail and set forth the measures being taken to remedy such default: ______________ _ ____________ .) . 409 EXHIB IT NO. 5 TO AFFORDABLE HOUSING AGREEMENT INITIAL LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY (Attached.) 410 ' ' ' ' '. ' ' ' ' ' ' ' ' I I ' ' ' ' ' ;---~----' ' ' ' ' ' ' I ' 't ) 411 EXHIBIT "G" FORM OF OVERHEAD POWER EASEM ENT Form to be proposed by Southern Cal ifornia Edison for a 66kV power line, but will be subject to approval by th e City Manager, and it shall be executed and recorded by Developer prior to issuance of a grad ing permi t 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, permittin g reasonable use of the easement area by City fo r park ing , ing ress/eg ress and landscaping. 12853--0018\2044326v1 .doc Exhibit G Page 1 of 1 412 Z L;: 413 12853-00 18\2044326v1 .doc EXH I BIT "H" STORM WAT ER/FLOOD DETEN TI ON BASI N (D iagra m attac hed .) 414 0 • "'-~ Q,1 11 , ·1 ' ' . • ' ' ' 11 ' ' " • ,, ~ ' ' ' • • ' ' ' ' ' ' I ' I '·~ l II II r ~. i I ! t,-1 415 12853·0018\2044326v1.doc EXHIBIT "I " FORM OF WELL SITE GRANT DEED (AND CERTIFICATE OF ACCEPTANCE) (Attached .} 416 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City of Moorpark 799 Moorpark Avenue Moorpark, California 93012 Attention: City Clerk APN: 511-0-020-071 (SPACE ABOVE FOR RECORDER'S USE ONLY] GRANT DEED (Well Site) THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS: The undersigned declares that this Grant Deed is exempt from Recording Fees pursuant to California •Government Code Section 27383. Documentary Transfer Tax is $0 (exempt; conveyance to a pub lic entity). FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged the ESSEX MOORPARK OWNER, LP., a California limited partnership ("Granter") hereby ·grants to the CITY OF MOORPARK ("Grantee"), the land and located in the County of Ventura, State of California, more particularly described on Exhibit A attached hereto and incorporated herein by reference and all improvements thereon (collectively, the "Property"). IN WITNESS WHEREOF, Granter has executed this Grant Deed as of the date set forth below. Dated: ---~ 2017 GRANTOR: ESSEX MOORPARK OWNER, LP., a California limited partnership By: Essex Moorpark GP, LP., a California limited partnership, its general partner By: Essex Management Corporation, a California corporation, its general partner By:---'---------Print Name: _______ _ Title:~--------- 417 A notary pub lic or other officer completing th is certificate verifies only the identity of the individua l who signed the document to wh ich this certificate is attached, and not the truthfu lness, accuracv, or validitv of the document. STATE OF CALIFORN IA COUNTY OF _____ _ On-------,--,-,-----__ , 20 __ before me,, ____________ _, Notary Public, persol)ally 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 PERJ URY under the laws of the State of Cal ifornia that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: _________ _ (affix seal in above space) 418 Exhibit A to Grant Deed LEGAL DESCRIPTION A PORTION OF LOTT OF THE MAP OF A PART OF TRACT L OF RANCHO SIMI, IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF T HE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: . BEGINNIN_G AT A POINT 325.00 FEET WEST OF THE SOUTHEAST CORNER OF SAID LOTT, THENCE . 1 ST: WEST 10.00 FEET TO POINT; THENCE, 2ND: NORTH 20.00 FE ET TA POINT; THENCE, 3RD: EAST 20.00 FEET TO POINT; THENCE, 4TH: SOUTH 20.00 FEET TO A POINT; THENCE, 5TH: WEST 10.00 FEET TO THE POINT OF BEGINNING. EXCEPTING THEREFROM 50% OF ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY B. HOPFEL T, IN A DEED RECORDED . MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ANYAND ALL RIGHT TO ENTER IN OR UPON THE SURFACE, OR WITHIN 500 FEET OF THE PRESENT SURFACE,. MEASURED VERTICALLY, FROM SUCH SURFACE WAS QUITCLAIMED BY WALLY B. HOFFELT IN A DEED RECORDED FEBRUARY 11, 1958 IN BOOK 1589, PAGE 153 OF OFFICIAL RECORDS. ALSO EXCEPTING THEREFROM AN UNDIVIDED 25% OF AN UNDIVIDED ONE- HALF INTEREST IN AND TO THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, . AS RESERVED BY RILEY SPENCER AND DORA E. SPENCER, IN A DEED RECORDED FEBRUARY 4, 1958 IN · BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. 419 CERTIFICATE OF ACCEPTANCE (California Government Code Section 27281) This is to certify that the interest in real property conveyed by that certain Grant Deed dated ---~· 2017, from Essex Moorpark Owner, L.P. to the City of Moorpark, which is a political corporation, is hereby accepted by the undersigned officer on behalf of the City of Moorpark pursuant to the authority conferred by action of the · City of Moorpark on ___ __, 2017, and the grantee consents to recordation thereof by its duly authorized officer. Dated: ---~ 2017 Steven Kueny, City Manager ACKNOWLEDGMENT 420 A notary publ ic or other officer completing th is certificate verifies only the identity of the individual who signed the document to which th is certificate is attached, and not the truthfulness, accuracy, or validlty of that document. State of California County of _____ _ ) ) On ___________ , before me, ___________ _, (insert name and title of the officer) N otary Public, personally appeared _________________ _, who proved to me on the bas is of satisfactory evidence to be the person(s) whose name(s) isfare subscribed to the within instrument and acknowledged to me that hefshefthey executed the same i n hislherftheir authorized capacity(ies), and that by h isfherftheir 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. W ITN ESS my hand and official seal. Signature. ____________ _ (Seal) 421 SCHEDULE 1 SCHEDULE OF PERFORMANCE Design Phase: D esig n has been completed Bond / Tax Certificate Application: May 19, 2017 (Tax c redit application wou ld follow shortly th ereafter.) 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/equ ity f un ds for all Project costs (with comprehens ive Project budget): August, 201 7 Close Bond Financi ng: October, 2017 Construct ion: 28 months from start of grad ing, but no later than December 31, 2020. Lease-Up: approximately 11 months 1285~001812044326v1 .doc 422 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 2022000082017 Recorded in Official Records Venlura Counly Clerk-Recorder Mark A. Lunn 08/04/2022 08:51 AM VEN CORTEZE Titles: 1 Pages: 96 Fees: $0.00 EXEMPT FROM Rt:t;UKucr<'S FEES Pursuant to Government Code 6103 FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P. THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868. 5 ATTACHMENT 3 423 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"; 2 424 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 3 425 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 4 426 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 5 427 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. 6 428 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 7 429 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). 8 430 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). 9 431 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 10 432 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 11 433 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 12 434 Omitted." 19. Operative Date of First Amendment. This First Amendment shall become operative on th date that Ordinance No. that approves this First Agreement becomes effective pursuant to Government Code Section 36937, subject to Section 2 of this First Amendment. 20. Authority. By their signatures below, the individuals signing on behalf of Developer and City warrant that they have the authority to execute this First Amendment on behalf of Developer and City, respectively. 21. Entire Agreement. The Development Agreement and this First Amendment, contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements, understandings, oral written, are hereby merged herein, except that nothing contained herein is intended to or shall abrogate, extinguish or supersede the Affordable Housing Agreement and any other City land use entitlements or conditions imposed thereby that are applicable to the development of the Property. Effect of Amendment. Except as amended herein, all other provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the City of Moorpark and the Developer have executed this First Amendment to the Development Agreement on the date first above written. CITY OF MOORPARK JakeS.Parvi'n yor OWNER/DEVELOPER ESSEX MOORPARK OWNER, L.P.,; a California limited partnership By: Essex Moorpark GP, L.P a California limited partnership, Its general partner By: Essex Management Corporation a California corporation its general partne:.1..----. 13 435 ALL SIGNATURES MUST BE NOTARIZED A Notary Public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached , and not the truthfulness , accuracy , or validity of that document. State of California County of Ventura on Ju.\.'-\. Z Ce, z.02:z.. , before me, £-\\..CS:.'-\. µ. \f ti 0 (\J _ U-. (in se rt na me a nd -titl e of th e officer) Notary Public, personally appeared _1-\"CID ___ W\ __ c,::. __ (_f____, q.----------who proved to me on the basis of satisfactory evidence to b he person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted , executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITN 14 ELISA M, TAYLOR Not ary Public • Californi a : San Mat eo County ~ ommlsston II 234336 2 -ir es Jan 25, 20 436 CITY OF MOORPARK 799 Moorpark Avenue, Moorpark, California 93021 Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I moorpark@moorparkca.gov A notary publ ic or other officer completing this certificate verifies only the identity of the ind ividua l who signed the document to which this certificate is attached, and not the truthfu lness, accuracy, or validity of that document. PUBLIC AGENCY FORM OF ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) On this 1st day of August in the year 2022, before me, Ky Spangler, City Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of sat isfactory evidence to be the person whose name is subscribed to the within instrument and who is personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity as the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged to me that the City executed the instrument. I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. Witness my hand and Official Seal City Clerk JANICE S. PARVIN Mayor DR. ANTONIO CAST RO Councilmember CHRIS ENEGREN Councilmember DANIEL GROFF Councilmemb er DA YID POLLOCK Coun cilmember 437 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) 16 438 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 17 439 EXHIBIT B DESCRIPTION OF CITY SITE All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document No. 20050503-0108315 or official records in the Office of the County Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder. EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009 as Instrument No. 20090430- 00069389 of Official Records of said County. ALSO EXCEPT THEREFROM that portion lying northerly of the following described line; BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No. 2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof; 1st Thence, departing said east line South 89°38'32"West 752.05 feet; 2nd Thence, South 27°20'34West 36.75 feet; 3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel 1A. 18 440 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 19 441 EXHIBIT D FORM OF AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT UNDER SEPARATE PAGE) 20 442 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 ----- 21 443 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 22 444 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. 23 445 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. 24 446 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 25 447 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 26 448 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. 27 449 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 28 450 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 ). 29 451 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. 30 452 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 31 453 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) 32 454 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. 33 455 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. 34 456 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 35 457 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. 36 458 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 37 459 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 38 460 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. 39 461 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] 40 462 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. 41 463 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 42 464 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 43 465 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 44 466 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 45 467 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 46 468 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 47 469 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. 48 470 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 49 471 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. 50 472 WHEREFORE, the parties have executed this Agreement as of the date first- above written. 51 CITY: CITY OF MOORPARK By:------------- Print Name: ---------- TitIe: ------------ OWNER: Essex Moorpark Owner, L.P. By:------------- Print Name: ---------- TitIe: ------------ 473 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) 52 474 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) 53 475 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. 54 476 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: 55 477 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. 56 478 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. 57 479 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; 58 480 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; 59 481 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 ---------- 60 482 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. 61 483 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] 62 484 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 63 485 IN C O M E CA L C U L A T I O N WO R K S H E E T In c l u d e al l ho u s e h o l d in c o m e fo r al l pe r s o n s ov e r 18 ye a r s of ag e Wr i t t e n ve r i f i c a t i o n of al l in c o m e mu s t be in c l u d e d Gr o s s Ne t 10 9 9 Pu b l i c So c i a l Pe n s i o n Un e m p l o y Mi l i t a r y Al i m o n y Fa m i l y Ap p l i c a n t Wa g e s In c o m e In c o m e As s i s t a n c e Se c u r i t y me n t Pa y an d o r Su p p Sa l a r i e s fr o m 10 4 0 di s a b i l i t y or Ch i l d r e g u l a r gi f t Y T D as of s e l f wo r k e r s Su p p o r t fr o m em p l o y e d co m p e n s a t pe r s o n no t io n pa y li v i n g in un i t 1 2 3 4 OM TO T A L IN C O M E I n c l u d e s ov e r t i m e pa y co m m i s s i o n s fe e s ti p s an d bo n u s e s Do e s no t in c l u d e am o u n t s re c e i v e d as re i m b u r s e m e n t s of me d i c a l co s t s or in s u r a n c e pa y m e n t s AS S E T CA L C U L A T I O N Al l in c o m e ea r n e d on as s e t s in ex c e s s of 5 0 0 0 mu s t be in c l u d e d as ho u s e h o l d in c o m e Wr i t t e n ve r i f i c a t i o n mu s t be in c l u d e d If wr i t t e n ve r i f i c a t i o n is no t av a i l a b l e fo r sa v i n g s th e cu r r e n t pa s s b o o k sa v i n g s ra t e as de t e r m i n e d by HU D ma y be us e d Re a l Pr o p e r t y St o c k s Ot h e r DI D TO T A L AS S E T IN C O M E Sa v i n g s Bo n d s I n c l u d e s re n t a l in c o m e or eq u i t y if no t re n t e d on l y Eq u i t y is th e di f f e r e n c e be t w e e n th e ma r k e t va l u e of th e pr o p e r t y an d th e to t a l do l l a r am o u n t of an y lo a n s se c u r e d by th e pr o p e r t y D o e s no t in c l u d e th e pe r s o n a l pr o p e r t y i. e fu r n i t u r e or au t o m o b i l e s I TO T A L HO U S E H O L D IN C O M E A B) I 64 486 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 65 487 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) 66 488 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 67 489 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$ --------- 68 490 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: 69 491 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: -------------------------- 70 492 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: 71 493 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 72 494 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 #: ______ _ 73 495 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: ____________ _ 74 496 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.: _______________________ _ 75 497 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: __________ _ 76 498 EXHIBIT E FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST UNDER SEPARATE PAGE) 77 499 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. 78 500 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 79 501 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. 80 502 9. Subordination; No Acceleration Upon Transfer or Refinancing. a. Lender shall execute commercially reasonable subordination agreements as requested by the Borrower's senior lender(s) to subordinate this Note and the Deed of Trust to the Borrower's senior bond financing encumbering the Project property. b. The Borrower shall be permitted to refinance its senior bond financing and the Lender shall also subordinate this Note and the Deed of Trust to any refinancing of such senior bond financing so long as the amount to be subordinated does not exceed the original principal balance of such loan plus reasonable closing costs. In such event, subordination of the Loan to such refinancing shall be subject to the Lender's sole discretion. I 0. Non-Recourse. Anything contained in any provision of the Deed of Trust or this Note notwithstanding, the Loan shall be a nonrecourse obligation of Borrower and its partners except in the event of fraud or a material misrepresentation of fact by Borrower. 11. Application of Payments. All payments made hereunder shall be applied first to interest due and then in reduction of the principal balance. 12. Waivers. Borrower hereby waives presentment, demand, protest, notice of dishonor, notice of protest and all other notices and demands of every kind that would otherwise be available in connection with this Note. 13. Notice. Any notice, consent or approval required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given (i) one business day after being deposited with Federal Express or another reliable overnight courier service for next day delivery, (ii) upon electronic mail transmission ( except that if the date of such transmission is not a business day, then such notice shall be deemed to be given on the first business day following such transmission), or (iii) two business days after being deposited in the United States mail , registered or certified mail, postage prepaid, return receipt required, and addressed as follows: If to Borrower: With a copy to: With a copy to : With a copy to: Danco Communities 5251 Ericson Way Arcata, CA 95521 Attention: Chris Dart cdart@ danco-group.com) Odu & Associates, PC 31805 Temecula Parkway #720 Temecula, CA 92592 Attention: Nkechi C. Odu, Esq. nkechi @ odulaw.com) EQUITY INVESTOR] EQUITY INVESTOR COUNSEL] 81 503 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] 82 504 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 83 505 RECORDING REQUESTED BY Commonwealth Land Title Insurance Company AND WHEN RECORDED MAIL TO: City of Moorpark 799 Moorpark A venue Moorpark, California 93021 Attention: City Clerk Space Above This Line For Recorder's Use) SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT OF RENTS THIS SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT OF RENTS ("Subordinated Deed of Trust") is made on this _day of _____ 2022, by Moorpark Casey Road LP, a California limited partnership, as trustor ("Borrower") to Commonwealth Land Title Insurance Company ("Trustee"), for the benefit of CITY OF MOO RPARK, a California municipal corporation ("Lender"). The Borrower, in consideration of the indebtedness recited and the trust created in this Subordinated Deed of Trust, irrevocably grants and conveys to Trustee, in trust, with power of sale all of its right title and interest in and to that certain real property located in the City of Moorpark, County of Ventura, State of California, legally described in "Exhibit A" attached hereto and made a part hereof. Together with all of the improvements now or hereafter erected on said property, and all easements, rights, appurtenances, rents (subject, however, to the rights and authorities given in this Subordinated Deed of Trust to the Lender to collect and apply such rents), royalties, mineral, oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or hereafter attached to said property, all of which including replacements and additions thereto, shall be deemed to be and remain a part of the property covered by this Subordinated Deed of Trust; and all of the foregoing, together with said property are referred to in this Subordinated Deed of Trust as the "Property"; This Deed of Trust constitutes a financing statement filed as a fixture filing under Article 9 of the California Uniform Commercial Code, as amended or recodified from time to time, covering any property which now is or later may become fixtures attached to the Property. For this purpose, Borrower is debtor and Lender is secured party. 84 506 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 85 507 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. 86 508 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; 87 509 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. 88 510 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] 89 511 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 90 512 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] 91 513 EXHIBIT A LEGAL DESCRIPTION OF THE PROPERTY ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005- 04 IN THE CITY OF MOO RP ARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY AND ST A TE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS). TOGETHER WITH THAT PORTION OF PARCEL IA OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL IA OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; 92 514 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. 93 515 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. 94 516 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) 95 517 CDa, Il l j C t1 i 0 il l Qs j s p 9 ai f: 3 I o I ij ri 11;" o1 r 1 1 1 l l i t i; 1. 8 j L L. L~ r -. E]m 11·~;- l 3 l 6 ir 1 I MO O f i l N U AP M T I I B I T S a t 141 1 1 1 SO i E M TIC OE S I G t l I PA 0 1 9 T SI J M M A A Y I. J N T P U I iO l f T S l l o l J II H l N T S M S l 2 1 N f l I N 20 0 l N lt S f. K t t l lf Y I. N f' S MN 1. 5 1 1 1 i EK J IJ C T TV P E I s E O li 2 U K T S t 2« 0 U U1 4 1 T S t a 1 l E O ill UN r. i i TO T M. l J. l, f T: S PA R t c I N G AE Q J 1F£ D J« o OJ E s T P E R O tl l A C i m 9 c u i o, l S P N E io S P C E S 4 4: j P A F S F' R a. O E D A! l l O tu A l w i e. HM 1 A l t. 3 A, l 5 G i J 1 1 Q. R T S P A C E S C N E D P E N a F N f 8 W fS f IM il W lO T A L t i: A C E S Aa l! S T" 1 3 f. 1 l UT Y UN ll N E S PA C, E S L• h l l A0 M l t E R 66 P N B O S' P A C Z A I PO W a 1 l' O l t c r r s r e PA 0 P O S E D AE l 0 A i l l N ON ar t t 06 1 N C I E R G A J N I J E J PO Y B l U_ l j E S u r u E Ut G R Q J t l l N E. S OO N C E PT U A L 51 1 1 Pl A N r. h" d t o M I A1 1 C 0 Em t i Cz m C/ 518 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 2022000115909 Recorded in Official Records Ventura County Clerk-Recorder Mark A. Lunn 12/14/2022 02:24 PM VEN CERVANTD Titles: 1 Pages: 82 Fees: $0.00 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT BY AND BETWEEN CITY OF MOORPARK AND ESSEX MOORPARK OWNER, LP. 12853-0092\2729176v7 .doc ATTACHMENT 4 519 SECOND AMENDMENT TO DEVELOPMENT AGREEMENT This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment") is dated as of Deambe-r 2 , 2022, and is entered into by and between the CITY OF MOORPARK, a municipal corporation ("City"), and ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Developer"). RECITALS WHEREAS, the City and Developer entered into that certain Development Agreement dated April 17, 2017, which was recorded on April 17, 2017 as Document No. 20170417-00050720-0 in the Official Records of Ventura County, California, and amended it by a First Amendment of Development Agreement ("First Amendment") dated August 2, 2022 which was recorded on August 4, 2022 as Document No. 2022- 000082017 in such Official Records (as amended, the "DA"); WHEREAS, Developer is the owner of real property within the City, more specifically described in Exhibit "A" attached hereto (referred to hereinafter as the "Property"); and WHEREAS, City and Developer desire to amend the DA to modify certain portions of the Amended and Restated Affordable Housing Agreement that was attached as Exhibit D to the First Amendment of Development Agreement, extend the date for satisfying certain conditions as set forth herein and make certain corrections to the First Amendment and its exhibits. NOW, THEREFORE, the parties hereby agree as follows: 1. Amendments. a. Section 2 of the First Amendment is hereby amended to change the cross reference of "Section 16" that is contained therein to "Section 19" and to extend the October 29, 2022 date set forth therein to December 31, 2022. b. The first paragraph of Section 10 of the First Amendment is hereby deleted in its entirety and revised to read as follows: 12853-0092\2729176v7 .doc "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 -1- 520 the City by grant deed the 'City Site' as described on Exhibit B to the First Amendment." c. The last paragraph of Section 10 of the First Amendment is hereby deleted in its entirety and revised to read as follows: "In connection with the development of the Project, Developer shall make commercially reasonable best efforts to relocate and underground the existing overhead Southern California Edison ("Edison") 66kV utility lines and poles ("Utility Facilities") located on the Property and the City Site at its sole cost and expense no later than sixty (60) months following the acquisition of the Property by the Affordable Housing Developer. The Developer and City acknowledge that Edison shall determine the location and path of the underground Utility Facilities in compliance with Edison regulations and state law, and in the event that the hard costs (not soft cost, including without limitation project management fees and costs, and design, engineering and administrative fees and costs) of undergrounding the Utility Facilities on the City Property exceeds $500,000, Developer shall not be required to underground the Utility Facilities on the City Site and Developer shall instead relocate the Utility Facilities as set forth in the Utility Facility redesign by BJ Palmer & Associates and depicted on Exhibit "J" attached hereto (the "Revised Plan") and Developer shall pay $400,000 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." d. Exhibit A (Legal Description of Property) to the First Amendment is hereby deleted and replaced in its entirety with Exhibit A to this Second Amendment. e. Exhibit D to the First Amendment is hereby deleted and is replaced in its entirety with the Amended and Restated Affordable Housing Agreement attached as Exhibit "B" to this Second Amendment (which contains altered provisions). f. Exhibit F to the First Amendment is hereby deleted and replaced in its entirety to with Exhibit "C" to this Second Amendment. -2-521 g. The form and content of the Offsite Improvement Performance and Payment Bonds which are to be Exhibit K of the First Amendment are attached as Exhibit "D" hereto. 2. Counterparts. This Amendment may be executed and recorded in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. 3. Except as amended herein, all other provisions of the DA shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. DEVELOPER: ESSEX MOORPARK OWNER, LP. a California limited partnership By: Essex Moorpark GP, L.P. a California limited partnership Its: General Partner CITY: CITY OF MOORPARK, a municipal corporation By: Janice S . Parvin, Mayor By: Essex Management Corporation ATTEST: a California corporation Its : General Partner Ky Spangler, City Clerk APPROVED AS TO FORM : By: Kevin G. Ennis, City Attorney -3- 522 g. The form and content of the Offsite Improvement Performance and Payment Bonds which are to be Exhibit K of the First Amendment are attached as Exhibit "D" hereto. 2. Counterparts. This Amendment may be executed and recorded in counterparts, each of which shall be deemed an original, and all of which, taken together, shall constitute one and the same instrument. 3. Except as amended herein, all other provisions of the DA shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed the day and year first above written. DEVELOPER: ESSEX MOORPARK OWNER, LP. a California limited partnership By: Essex Moorpark GP, L.P. a California limited partnership Its: General Partner By: Essex Management Corporation a California corporation Its: General Partner By: Name: ----------Tit I e : -3- CITY: CITY OF MOORPARK, a municipal corporation By:~)~ ~arZtin, Mayor ATTEST: Ky Spang~~ APPROVED AS TO FORM: By: ~-x~ Kevin G. Ennis, City Attorney 523 ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness , accuracy , or validity of that document. State of California County of San Mateo on December 6, 2022 before me , Sandi Aguayo Cabral, Notary Public (insert name and title of the officer) personally appeared _A_d_a_m_B_e_r_ry ______________________ _ 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 se I. (Seal) 524 CITY OF MOORPAR K 79 9 Moorp ark Avenu e, Moorp ark , Californi a 930 21 Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I mo orp ark@moorpark ca .gov A notary pub li c or other officer complet ing th is certificate verifies only the ident ity of the ind iv idual who signed the document to which this certificate is attached, and not the trut hfulness, accuracy, or validity of that document. PUBLIC AGENCY FORM OF ACKNOWLEDGMENT STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss . CITY OF MOORPARK ) On this 3rd day of November in the year 202 2 , before me , Ky Spangler, City Clerk of the City of Moorpark, persona lly appeared Janice S. Parvin, who proved to me on the bas is 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 tha t 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 instrumen t. I certify under PENALTY OF PER JU RY under the laws of the State of California that the foregoing paragraph is true and correc t. Witness my hand and Official Se a l City Clerk .J AN ICE S. PA RVI N May o r DR. ANTON IO CAS TRO Cou ncilrn ember CHRIS ENEGREN Co uncilmem ber DAN IEL GROFF Co u ncilm ember DA v rn POLLOCK Counci lm em be r 525 EXHIBIT "A" TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT LEGAL DESCRIPTION OF PROPERTY (Replaces Exhibit A to First Amendment) ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1: PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS). TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503- 0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34"' WEST 36.75 FEET; A-1 526 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. EXCEPT AS TO A PORTION OF SAID LAND 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. MCFFEL T, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. PARCEL 2: PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER. EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL RECORDS OF SAID COUNTY. ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; · A-2 527 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V. BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL RECORDS. ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFEL T, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. APN: 511-0-020-26 5 AND 511-0-020-275 A-3 528 EXHIBIT "B" TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT "AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT" (Exhibit D to First Amendment) (Attached.) B-1 529 Recording Requested By: CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 Attention: City Clerk OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 SPACE ABOVE THIS LINE FOR RECORDER'S USE AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT by and between CITY OF MOORPARK and MOORPARK CASEY ROAD LP Dated as of _____ , 2022 B-2 530 AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be effective as of ___________ , 2022, regardless of the date of actual execution hereof, and is entered into by and between the CITY OF MOORPARK, a municipal corporation ("City"), and Moorpark Casey Road LP, a California limited partnership ("Owner"), and shall upon the recordation hereof, supersede and replace that certain Affordable Housing Agreement between the City and Essex Moorpark Owner, 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 ______ _, 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 ("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 B-3 531 apartment units (i&:, 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 meanings. Definitions. Capitalized terms used herein shall have the following "Affordable Rent" shall mean the rent described in Section 2.9, subject to Section 2.10. "Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low Income Households, Very Low Income Households and Low Income Households described at the end of Exhibit 2 to this Affordable Housing Agreement. "Agreement" shall mean this Revised Amended and Restated Affordable Housing Agreement. "City" shall mean the City of Moorpark, California, a municipal corporation. "County" shall mean Ventura County. "County Median Income" shall mean the Area Median Income for Ventura County adjusted by actual household size as published annually by the California Tax Credit Allocation Committee (CTCAC), or if CTCAC discontinues such publication, then such reasonable replacement publication as may be selected by City in good faith. "Density Bonus" shall mean the density bonus granted by the City to Owner in connection with the Project pursuant to the Project Approvals. "Development Agreement" shall mean Development Agreement dated April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the County of Ventura on April 17, 2017, which has been amended by a First Amendment to Development Agreement dated August 2, 2022, and recorded as Instrument No. 2022000082017 Pages 1 /96 in the Official Records of the County of Ventura. "Extremely Low Income" shall mean a household income that does not exceed thirty percent (30%) of the County Median Income, adjusted for household size appropriate to the Unit. B-4 532 "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 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. B-5 533 "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 B-6 534 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 solar ready, water heater, built-in oven, microwave, stove, bathroom fan, doors and door hardware, and floor and window coverings. Owner agrees not to convert the Project or any part thereof to any type of common interest development, for-sale condominiums, community apartments, planned development, stock cooperative, hotel, motel, or any type of congregate care or assisted living facility. Owner agrees that they shall not knowingly permit any of the Units in the Project to be used on a transient basis and shall not rent any Unit for a period of less than thirty (30) days. At no time shall any of the Affordable Units be rented to an employee, agent, officer, contractor of any owner of any portion of the Property or Project or of any company affiliated with any such owner, or to any such affiliated company. 2.4 INTENTIONALLY OMITTED 2.5 Rules. In addition to the conditions and restrictions to be contained in leases or rental agreements as provided in this Agreement, ongoing operation of the Project will be subject to reasonable house rules, policies and regulations issued from time to time by Owner and approved by City which 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 B-7 535 such Rules to the City at least forty-five (45) days prior to their proposed effective date and all of such amendments, modifications and changes shall be subject to the City's prior written consent, which will not be withheld, conditioned or delayed. If City does not consent, City shall specify the reasons in writing so that Owner can revise the amendment(s), modification(s) or change(s) and re-submit them for City approval, which will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City on an annual basis a certification that the Rules previously submitted to City, as amended, remain in effect (with a copy of the Rules and any amendments). If applicable, this Agreement shall be consistent with any Extended Use Agreement entered into between Owner and the California Tax Credit Allocation Committee. 2.6 Single Owner. All of the Affordable Units shall be and remain owned by the Owner for the term of this Agreement. No Affordable Unit may be sold separately. 2.7 Affordable Units Generally. 2.7.1 Accessible Compliant Units. Four (4) Affordable Units shall be compliant with all laws regarding disabled persons (including, without limitation, the Americans with Disabilities Act) and shall be reserved for and occupied by persons eligible for such accommodations. Owner shall maintain a waiting list for the affordable accessible-compliant units, shall promptly deliver a copy thereof to City and shall thereafter deliver a copy of the revised list to City 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. B-8 536 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 B-9 537 (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.&.:, 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). B-10 538 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.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. B-11 539 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. B-12 540 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. B-13 541 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. B-14 542 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. B-15 543 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 B-16 544 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. B-17 545 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 B-18 546 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 th is 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 B-19 547 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. B-20 548 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 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] B-21 549 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. B-22 550 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 B-23 551 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 B-24 552 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 B-25 553 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 B-26 554 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 B-27 555 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 B-28 556 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. B-29 557 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 B-30 558 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 for storm water/retention purposes for the Project, and City shall execute and deliver a revocable license agreement to Owner to that effect. B-31 559 WHEREFORE, the parties have executed this Agreement as of the date first- above written. CITY: CITY OF MOORPARK By:-------------- Print Name: ---------- Tit I e: ------------- 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 B-32 Development Corporation, a California nonprofit public benefit corporation, its Managing General Partner By: David Rutledge President 560 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) B-33 561 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) B-34 562 EXHIBIT NO. 1 TO AFFORDABLE HOUSING AGREEMENT LEGAL DESCRIPTION ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: PARCEL 1: PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS). TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503- 0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. B-35 563 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. MCFFEL T, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. PARCEL 2: PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY RECORDER. EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL RECORDS OF SAID COUNTY. ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE; BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF; 1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET; 2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET; B-36 564 3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE OF SAID PARCEL 1A. ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V. BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL RECORDS. ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFEL T, IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL RECORDS. APN: 511-0-020-26 5 AND 511-0-020-275 B-37 565 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 Number Household Size of Unit of Units 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 Number Household Size of Unit of Units 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 Number Household Size of Unit of Units 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 apartmenUwalk-up unit type, Locality "Area Housing Authority of the County of Ventura, CA". B-38 566 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. B-39 567 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 m accordance with recertification of an Extremely Low Income Tenant's or Very Low Income Tenant's or a Low Income Tenant's occupancy ofan Extremely I .ow Income l/rnt or a Very I.ow Income IJrnt or a I .ow Income UniC rcspectively, this form must he completed based upon the current mcomc of the occupants B-40 568 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; B-41 569 (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; B-42 570 (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); G) 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 ---------- B-43 571 (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. B-44 572 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] B-45 573 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 B-46 574 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) com pen sat person not ion pay living in unit) 1 2 3 4 ~TOTAL INCOME l $ *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** $ _________ _ $ _________ _ $ _________ _ []ID TOTAL ASSET INCOME Savings Bonds l $ $ __________ _ $ _________ _ *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) ]$ B-47 575 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 Overtime Bonuses Commissions Wages 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 B-48 12853-0092\2729176v7.doc 576 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) 12853-0092\2729176v7.doc Signature (Resident) B-49 577 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 B-50 12853-0092\2729176v7.doc 578 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$ --------- B-51 12853-0092\2729176v7.doc 579 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: B-52 12853-0092\2729176v7.doc 580 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: --------------------------- B-53 12853-0092\2729176v7.doc 581 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: B-54 12853-0092\2729176v7 .doc 582 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 B-55 12853-009212729176v7.doc 583 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#: ______ _ B-56 12853-0092\2729176v7.doc 584 Please complete the following. If the monies are based on a percentage of the payor'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 of Source: _____________ _ SSN#: --------- Date Completed Form: ____________ _ B-57 12853-009212729176v7.doc 585 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.: ------------------------- B-58 12853-0092\2729176v7 .doc 586 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: __________ _ ____________________ .] B-59 12853-0092\2729176v7 .doc 587 EXHIBIT NO. 5 TO AFFORDABLE HOUSING AGREEMENT LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY (Attached.) B-60 12853-0092\2729176v7.doc 588 12853-0092\2729176v7 .doc ' ' ' ' : I , 'i1,' :t. B-61 1111 : 1~ ' . . ' ~ 589 EXHIBIT "C" TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT DANCO SCHEDULE OF PERFORMANCE (DEADLINES) (Exhibit F of First Amendment) Design Phase: Complete on or before December 31, 2021 Tax-Exempt Bond and Tax Credit Applications: March 16, 2022 Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022 Plan Check/Building Permits: December 31, 2022 Date property must be acquired by Affordable Housing Owner: December 31, 2022 Evidence to City of all debt/equity funds for all Project costs (with comprehensive Project budget): 30 days prior to the scheduled close of escrow Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing: December 31, 2022 Grading: To commence within 30 days after acquisition of property by Affordable Housing Owner or affiliate Construction: 24 months from commencement of grading Lease-Up: approximately 3 months following construction completion. C-1 12853-0092\2729176v7.doc 590 EXHIBIT "D" TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT FORM OF OFFSITE IMPROVEMENT PERFORMANCE AND PAYMENT BONDS (Exhibit K of First Amendment) (Attached.) D-1 12853-0092\2729176v7 .doc 591 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 D-2 12853-0092\2729176v7.doc 592 made evident during the period of one (1) year(s) from the date of completion of the work, and resulting from or caused by defective materials or faulty workmanship, the above obligation in penal sum thereof shall remain in full force and effect. The obligation of SURETY hereunder shall continue so long as any obligation of PRINCIPAL remains. Whenever PRINCIPAL shall be, and is declared by the CITY to be, in default under the contract, the CITY having performed the CITY's obligations thereunder, the SURETY shall promptly remedy the default in a manner mutually agreeable to both CITY and SURETY: 1. SURETY's takeover of the performance obligations to complete the contract by entering into an agreement with a completion contractor with terms and conditions consistent with the original contract between CITY and PRINCIPAL; or 2. SURETY shall obtain a bid or bids for completing the contract in accordance with its terms and conditions, and upon determination by SURETY of the lowest responsive and responsible bidder, prepare a contract between such bidder and the CITY (to the CITY's satisfaction), and make available as work progresses sufficient funds to pay the cost of completion less the balance of the contract price, but not exceeding, including other costs and damages for which 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. 0-3 12853-0092\2729176v7 .doc 593 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. IN WITNESS WHEREOF, we have hereto set our hands and seals this __ day on __________________ , 20_ PRINCIPAL By: ___________ _ President SURETY By: ___________ _ Attorney-in-Fact D-4 12853-0092\2729176v7.doc 594 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 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) D-5 12853-0092\2729176v7 .doc 595 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. 0-6 12853-009212729176v7 .doc 596 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 D-7 12853-009212729176v7 .doc 597 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, 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 D-8 12853-0092\2729176v7.doc 598 CERTIFICATE OF ACKNOWLEDGMENT OF NOT ARY 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 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) 0-9 12853-0092\2729176v7 .doc 599 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. D-10 12853-0092\2729176v7.doc 600 RESOLUTION NO. PC-2023-689 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA, RECOMMENDING THE CITY COUNCIL ADOPT AN ORDINANCE APPROVING THE THIRD AMENDMENT TO THE DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK OWNER, L.P., 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 (DA) 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, on October 19, 2022, the City Council adopted Ordinance No. 509 approving the Second Amendment to DA No. 2012-03; and WHEREAS, on December 27, 2022, an application was filed to amend the terms of the Development Agreement between the City of Moorpark and Essex Moorpark Owner L.P.; and ATTACHMENT 5 601 Resolution No. PC-2023-689 Page 2 WHEREAS, at a duly noticed public hearing on January 24, 2023, the Planning Commission considered the Third 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 WHEREAS, the Community Development Director has determined that the Third Amendment to the DA is consistent with the Mitigated Negative Declaration adopted for the original project, including Residential Planned Development No. 2012-02; and WHEREAS the Developer has demonstrated diligent pursuit of the Project including submittal of building plans, further design work, and continued engagement with City staff. 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 Third Amendment to the Development Agreement No. 2012-03 are consistent with the Mitigated Negative Declaration adopted for 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 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 Third 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 Third 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 Third 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 602 Resolution No. PC-2023-689 Page 3 that the City Council adopt an Ordinance approving the Third Amendment to DA 2012- 03. SECTION 5. FILING OF RESOLUTION: The Community Development Director shall cause a certified resolution to be filed in the book of original resolutions. The action of the foregoing direction was approved by the following vote: AYES: Commissioners Alva, Barrett, Brodsly, Di Cecco, and Chair Landis. NOES: None. ABSENT: None. ABSTAIN: None. PASSED, AND ADOPTED this 24th day of January 2023. Kipp Landis Chair Carlene Saxton Community Development Director Exhibit A - Third Amendment to Development Agreement No. 2012-03 603