HomeMy WebLinkAboutAGENDA REPORT 2023 1018 CCSA REG ITEM 08ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of October 18, 2023
ACTION APPROVED STAFF
RECOMMENDATION, INCLUDING
INTRODUCTION OF ORDINANCE NO. 519.
(ROLL CALL VOTE: 3-0, MAYOR ENEGREN
AND COUNCILMEMBER GROFF RECUSED)
BY A. Hurtado.
A. Consider Ordinance Approving the Second Amendment to Development
Agreement No. 2018-01 between the City of Moorpark and Daly Group, Inc. and
Making a Determination of Consistency with the Previously Adopted Mitigated
Negative Declaration Pursuant to the California Environmental Quality Act in
Connection Therewithin. Staff Recommendation: 1) Open the public hearing,
receive public testimony and close the public hearing; and 2) Introduce Ordinance
No. 519, approving the Second Amendment to Development Agreement No. 2018-
01 for first reading, waive full reading, and place this ordinance on the agenda for
November 1, 2023, for purposes of providing second reading and adoption of the
ordinance. (Staff: Carlene Saxton, Community Development Director) (ROLL
CALL VOTE REQUIRED)
Item: 8.A.
Item: 8.A.
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: Honorable City Council
FROM: Carlene Saxton, Community Development Director
DATE: 10/18/2023 Regular Meeting
SUBJECT: Consider Ordinance Approving the Second Amendment to
Development Agreement No. 2018-01 between the City of Moorpark
and Daly Group, Inc. and Making a Determination of Consistency
with the Previously Adopted Mitigated Negative Declaration Pursuant
to the California Environmental Quality Act in Connection
Therewithin
BACKGROUND
High Street Depot
On November 16, 2017, the City and Daly Group, Inc. (Applicant) entered into an
Exclusive Negotiating Agreement (ENA) related to a 2.5-acre property located on High
Street that was owned by the City of Moorpark. The ENA was extended several times
as work progressed on the project design and the terms of the Development Agreement
(DA) and Disposition and Development Agreement (DDA) were negotiated. A City
Council ad hoc committee, consisting of then Mayor Parvin and then Councilmember
Simons, was formed to guide staff during the DA and DDA negotiations.
On September 7, 2018, the Applicant submitted an application to develop the 2.5-acre
property located on High Street (Site/Project Site) for a mixed-use development,
consisting of 79 residential units, 13,628 square feet of commercial and associated land
improvements, located at 226 High Street in the Downtown Specific Plan (Project). The
Project is referred to as the High Street Depot.
On October 21, 2020, the City Council adopted Ordinance No. 484 approving DA No.
2018-01 (Attachment 1) and on October 7, 2020, Resolution Nos. 2020-3949 and 2020-
3950 were adopted approving a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program, conditionally approving a Residential Planned
Development Permit No. 2018-01 and DDA No. 2018-01 for the Project.
On November 2, 2022, the City Council adopted Ordinance No. 509 approving the First
Amendment to DA No. 2018-01 (Attachment 2). The First Amendment clarified that
certain land is not included in the description of property within the DA, correcting the 1
Honorable City Council
10/18/2023 Regular Meeting
Page 2
legal description of the Project site to reflect the removal of approximately 240 square
feet at the southwest corner resulting from an approved lot line adjustment.
A Grant Deed for the transfer of the City owned property to High Street Depot, LLC
(Owner) was recorded on March 31, 2023. Construction of the Project began on
April 19, 2023. Currently, the Project Site has been cleared of structures and ground
improvements are underway.
The Planning Commission approved a Resolution (Attachment 3) recommending the
City Council approve the Ordinance approving the Second Amendment to the DA on
September 26, 2023.
DISCUSSION
Second Amendment to Development Agreement
The Applicant is seeking a Second Amendment to the DA (Attachment 4, Exhibit A) to
account for changes within the Affordable Housing Agreement (AHA). The proposed
changes to the following subsections of DA Section 6.9 – Workforce Housing are
summarized below:
• DA Section 6.9(a) – Accessible units changed from one studio and one two-
bedroom to two studio units on the ground floor; and
• DA Section 6.9(d) – Time of execution of the AHA to be changed from prior to
grading permit issuance to prior to building permit issuance; and
• DA Section 6.9(e) – The term of the residential component of the Project to be
revised to 55 years, rather than “the life of the Project”. This subsection clarifies
that the developer agrees not to convert any of the residential units to for-sale
condominiums, planned development, stock cooperative or other common
interest development, hotel/motel, or as congregate care or assisted living facility
for at least this term. The same term is then reflected in the AHA for the
affordable units.
The proposed amendments to the DA would be further documented in the AHA. The
AHA document is prepared internally and requires no further review by the Planning
Commission or City Council and effectively reflects the housing requirements of the DA
in more detail. Should the proposed Second Amendment be adopted, the Community
Development Department would prepare the AHA for recordation.
The proposed Second Amendment, is generally consistent with the goals, policies, and
programs of the General Plan 2050, including the 2021-2029 Housing Element.
ENVIRONMENTAL DETERMINATION
Pursuant to the California Environmental Quality Act, the City Council adopted a
Mitigated Negative Declaration (MND) on October 21, 2020, that analyzed the 2
Honorable City Council
10/18/2023 Regular Meeting
Page 3
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 Second Amendment to the DA does not present any new or additional
environmental impacts. Therefore, the Project remains consistent with the previously-
adopted MND and no further environmental documentation is required.
FISCAL IMPACT
There are no direct fiscal impacts associated with this request.
COUNCIL GOAL COMPLIANCE
These actions are consistent with the City Council Goal 2 – “Strategic Economic
Development.”
STAFF RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1.Open the public hearing, receive public testimony and close the public hearing;
and
2.Introduce Ordinance No. ____, approving the Second Amendment to
Development Agreement No. 2018-01 for first reading, waive full reading, and
place this ordinance on the agenda for November 1, 2023, for purposes of
providing second reading and adoption of the ordinance.
Attachment 1: Development Agreement No. 2018-01
Attachment 2: Ordinance No. 509 (First Amendment to DA No. 2018-01)
Attachment 3: Resolution No. PC-2023-699 (without Exhibit A)
Attachment 4: Draft Ordinance No. ____ (with Exhibit A: Second Amendment to DA No.
2018-01)
3
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
1111\\11\11\ 11\\\\\\\1111 \ 11\11111\11 \ \II\ II\
20201102-00183311-01/52
Ventura County Clerk and Recorder
MARK A. LUNN
111 02/2020 04:16:03 PM
1706387 $.00 RE
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code § 6103
l 2853-0062\2315175v22.doc
DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
DALY GROUP, INC
ATTACHMENT 1
4
DEVELOPMENT AGREEMENT
This Development Agreement the ("Agreement") is made and entered into on
V~k7er "Z-2 , 2020 by and between the CITY OF MOORPARK, a municipal corporation
referred to hereinafter as "City") and DALY GROUP , INC., a California corporation , (referred
to hereinafter as "Developer"). City and Developer are referred to hereinafter individually as a
Party" and collectively as the "Parties." [n consideration of the mutual covenants and
agreements contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts and for the
following purposes , each of which is acknowledged as true and correct by the Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal
Code Chapter 15 .40 , City is authorized to enter into a binding contractual
agreement with any person having a legal or equitable interest in real property
within its boundaries for the development of such property in order to establish
certainty in the development process.
1.2 Developer has entered into a Disposition and Development Agreement ("ODA ")
with the City to acquire ownership in fee simple of certain real property within the
City of Moorpark generally referred to as 192 High St and identified in that
certain legal description set forth in Exhibit "A-1", together with a sublicense
agreement over that certain real property owned by the Ventura County
Transportation Commission, which sublicense agreement and its legal description
are set forth in Exhibit "A-2 ," which exhibits are attached hereto and
incorporated by reference , refe1Ted to hereinafter collectively as the "Property ".
1.3 The ODA establishes certain Developer covenants (Section 3 of the ODA),
limitations on transfers of the security interests (Section 4), a Schedule of
Performance (Exhibit B to the DDA), and other obligations and responsibilities of
the Parties. Nothing contained herein is intended to supersede, amend or
otherwise exempt either Party from compliance with the provisions of the ODA.
1.4 Prior to , and in connection with , the approval of this Agreement, the City Council
reviewed the project to be developed pursuant to this Agreement as required by
the California Environmental Quality Act ("CEQA"). On October 7 , 202 0 , at a
duly noticed public hearing and after independent review and consideration, the
City Council made the required environmental findings pursuant to CEQA and
adopted Resolution No. 2020-3949 , adopting that certain Mitigated Negative
Declaration ("MND ") and related Mitigation Monitoring and Reporting Program
the ("MMRP") prepared for this Agreement and the Project Approvals as defined
in Subsection 1.5 of this Agreement.
1.5 The Downtown Specific Plan , as Amended , and the Residential Planned
Development (RPO) Permit No. 2 018-01 ("RPO 2018-01") including all
subsequently approved modifications , permit adjustments and amendments
thereto (collectivel y, "the Project Approvals"; individually "a Project Approval ")
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provide for the development of the Property with a mixed use development
project consisting of 79-residential units, approximately 13,628 sq. ft of
commercial and the construction of certain off-site improvements in connection
therewith (collectively, "the Project").
1.6 By this Agreement, City desires to obtain the binding agreement of Developer to
develop the Property in accordance with the Project Approvals, the DOA and this
Agreement. In consideration thereof, City agrees to limit the future exercise of
certain of its governmental and propriety powers to the extent specified in this
Agreement and the ODA.
1. 7 In consideration of the public benefits provided by the Developer pursuant to this
Agreement, which are in addition to any public benefits the City could require
from the Developer absent this Agreement, Developer desires to obtain the
binding agreement of City and the City intends to grant Developer certain vested
rights to proceed with the development of the Property, pursuant to the terms and
conditions of this Agreement. In consideration thereof, Developer agrees to waive
its rights to legally challenge the limitations and conditions imposed in this
Agreement, the DOA, and in those Project Approvals that are granted by the City
prior to or concurrently with the approval of this Agreement.
1.8 Developer would not enter into this Agreement to provide the public benefits and
financial contributions described herein, without the assurance of the City that the
Property can be developed as provided for herein.
1.9 City finds that this Agreement is consistent with the General Plan of City, as
currently amended; the Downtown Specific Plan, as amended; the Zoning
Ordinance of the City, except those portions exempted by the Downtown Specific
Plan; and that the City has completed all necessary proceedings in accordance
with the City's rules, and regulations for approval of this Agreement.
1.10 On September l 0, 2020, the Planning Commission commenced a duly noticed
public hearing on this Agreement, and after independent review and
consideration, recommended to the City Council adoption of this Agreement and
consideration of the MND and MMRP, and adoption of CEQA environmental
findings in accordance with CEQA.
1.11 On October 7, 2020, the City Council of City ("City Council") commenced a duly
noticed public hearing on this Agreement, and after providing the opportunity for
public comment, in its independent review and consideration closed the public
hearing and introduced and provided first reading to Ordinance No. 484 ("the
Enabling Ordinance"), which authorizes execution of this Agreement; considered
and certified the MND and MMRP and made the required environmental
findings; found that the provisions of this Agreement provide public benefits to
persons residing or owning property in the City of Moorpark beyond the exactions
for public benefits required or allowed to be required in the normal development
review and approval process; and approved the execution and recording of this
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12853-0062123 l 5175v22.doc 6
Agreement. On October 21, 2020, the City Council gave second reading to and
adopted the Enabling Ordinance.
1.12 On Novt-ml:,u 2,>2020 upon execution of the City and Developer, this Agreement,
in conjunction with a fully executed version of the DOA between the City of
Moorpark and Daly Group, Inc. was recorded against the Propc,ty as required by
California Government Code Section 65868.5 with the County of Ventura
Effective Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained, which arc
incorporated herein by reference and hereafter made a part of this Agreement, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby agreed and
acknowledged, the City and Developer agree as follows:
2.
3.
Propc,ty Subject To This Agreement. All of the Property shall be subject to this
Agreement. The Property may also be referred to hereinafter as "the site".
Binding Effect. Upon execution of this Agreement by the Parties and recordation of this
Agreement, the terms of this Agreement are binding upon each Party and each successive
successor in interest thereto ( subject to Subsection 3.2 below) and constitute covenants
and restrictions that run with the Property. This Agreement shall be recorded against the
Property as required by California Government Code Section 65868.5. This Agreement
will only bind and inure to the benefit of Developer and its successors in interest as
permitted by Section 4.1 of the DOA ("Permitted Successor"), or such other party
approved by the City.
3.1 Constructive Notice and Acceptance. Every Permitted Successor who acquires
any right, title or interest in or to any portion of the Property shall be conclusively
deemed to have consented and agreed to be bound by this Agreement, whether or
not any reference to the Agreement is contained in the instrument by which such
Permitted Successor acquired such right, title or interest, subject to Subsection 3.2
below.
3.2 Release Upon Subsequent Transfer. Provided the applicable conveyance is
permitted under the ODA or otherwise approved in writing by City, upon the
conveyance of Developer's interest in the Property by Developer or its
successor(s) in interest, the transferor shall be released from its obligations
hereunder with respect to the Property conveyed as of the effective date of the
conveyance, provided that the transferee expressly assumes all obligations of the
transferred Property and a copy of the executed assignment and assumption
agreement is delivered to the City prior to or in conjunction with the conveyance.
Failure to provide a written assumption agreement hereunder shall not negate,
modify or otherwise affect the liability of the transferee pursuant to this
Agreement.
12853-0002\231 SI 75v22.doc
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3.3 Priority of the DOA. Notwithstanding anything herein to the contrary, in the
event of a direct conflict between a term or provision of the DOA and a term or
provision of this Agreement, the parties agree that the term or provision of the
DOA shall prevail. When the terms and provisions of the DDA and the DA are
not in direct conflict, then the terms of both agreements shall be given equal
effect.
4. Development of the Property. The following provisions shall govern the development and
use of the Property.
4.1 Permitted Uses. The permitted and conditionally permitted uses of the Property
shall be limited to those that are allowed by the ODA, Project Approvals and this
Agreement.
4.2 Development Standards. All design and development standards, including but not
limited to density or intensity of use and maximum height and size of buildings,
that shall be applicable to the Property are set forth in the ODA, Project
Approvals and this Agreement.
4.3 Building Standards. All construction on the Property shall adhere to all City
building codes in effect at the time the building construction plans are reviewed
and approved by the Building Official of City for compliance with Title 15 of the
Moorpark Municipal Code and to any federal, state or local building requirements
that are then in effect ( collectively "the Building Codes").
4.4 Reservations and Dedications. All reservations and dedications of land for public
purposes that are applicable to the Property are set forth in the site design plans.
5. Vesting of Development Rights.
5.1
5.2
Vested Right to Develop; Timing of Development. Developer and its successors
in interest shall have the vested right to develop the Property in accordance with
the terms and provisions of the DDA, the Project Approvals and this Agreement.
The Parties intend that this Agreement, together with the DDA and the Project
Approvals, shall serve as the controlling documents for all subsequent actions,
discretionary and ministerial, relating to the development and occupancy of the
Property, including, without limitation, all Subsequent Approvals (as defined
below). The Developer's rights and obligations to develop the Property,
including the order, rate and times for that development shall be as provided in
the DDA, the Project Approvals and this Agreement.
Conflicting Ordinances or Moratoria. No future amendment of any existing City
ordinance, resolution or other action, or future adoption of any ordinance,
resolution or other action, that purports to limit the rate or timing of development
over time or alter the sequencing of development phases, whether adopted or
imposed by the City Council or through the initiative or referendum process, shall
apply to the Property, provided the Property is developed in accordance with the
DDA, the Project Approvals and this Agreement. Nothing in this subsection shall
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be construed to limit City's right to ensure that Developer timely provides all
infrastructure required by the DOA, the Project Approvals, Subsequent Approvals
and this Agreement.
5.3 Amendment of Project Approvals. No amendment, modification or revision of
any of the Project Approvals, whether adopted or approved by the City Council or
through the initiative or referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.4 Issuance of Subsequent Approvals. Applications for land use approvals,
entitlements and permits, including without limitation subdivision maps (e.g.
tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision
improvement agreements and other agreements relating to the Project, lot line
adjustments, preliminary and final planned development permits, use permits,
design review approvals ( e.g. site plans, architectural plans and landscaping
plans), encroachment permits, and sewer and water connections that are necessary
to or desirable for the development of the Project (collectively "the Subsequent
Approvals"; individually "a Subsequent Approval") shall be consistent with the
Project Approvals and this Agreement. For purposes of this Agreement,
Subsequent Approvals do not include ministerial building permits.
Subsequent Approvals shall be governed by the Project Approvals and by the
applicable provisions of the Moorpark General Plan, the Moorpark Municipal
Code and other City ordinances, resolutions, rules, regulations, policies, standards
and requirements as most recently adopted or approved by the City Council or
through the initiative or referendum process and in effect at the time that the
application for the subsequent Approval is deemed complete by City ( collectively
City Laws"), except City Laws that:
a) change any permitted or conditionally permitted uses of the Property from
what is allowed by the Project Approvals;
b) limit or reduce the density or intensity of the Project, or any part thereof,
or otherwise require any reduction in the number of proposed buildings or
other improvements from what is allowed by the Project Approvals;
c) limit or control the rate, timing, phasing or sequencing of the approval,
development or construction of all or any part of the Project in any
manner, provided that all infrastructure required by the Project Approvals
to serve the portion of the Property covered by the Subsequent Approval is
in place or is scheduled to be in place prior to completion of construction;
d) are not uniformly applied on a citywide basis to all substantially similar
types of development projects or to all properties with similar land use
designations;
e) control residential rents; or
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5.5
5.6
5.7
f) modify the land use from what is permitted by RPD 2018-01 as of the
Effective Date of this Agreement, the DDA and any Project Approvals.
Modification of Approvals. Throughout the term of this Agreement, Developer
shall have the right, at its election and without risk to or waiver of any right that is
vested in it pursuant to this Agreement, to apply to City for modification,
amendments or revisions to Project Approvals and Subsequent Approvals. Such
requests for modifications, amendments or revisions to the Project Approvals or
Subsequent Approvals shall be made by Developer and reviewed and approved by
the City as permitted by the City Municipal Code, including without limitation
Section 17.44.100. Notwithstanding the foregoing, in no event shall the square
footage of floor area of the Project approved for commercial use be reduced
without City Council approval. The approval or conditional approval of any such
modification, amendment or revision shall not require an amendment to this
Agreement, provided that, in addition to any other findings that may be required
in order to approve or conditionally approve the modification, a finding is made
that the modification is consistent with the DOA and this Agreement and does not
materially alter the permitted uses, density, intensity, maximum height, size of
buildings or reservations and dedications as contained in the Project Approvals or
DOA.
Issuance of Building Permits. No permit for construction issued by the City's
Building Official pursuant to Title 15 of the City's Municipal Code ("Building
Permit") shall be unreasonably withheld or delayed (including the processing
thereof) from Developer, if Developer is in compliance with this Agreement, the
DOA and the Project Approvals and Subsequent Approvals, if any. In addition,
no final inspection, or certificate from the Building Official that construction
work has been completed in compliance with approved building plans and Title
15 of the City's Municipal Code, and is safe and allowed to be entered and
occupied by the public (" Certificate of Occupancy") shall be unreasonably
withheld or delayed (including the processing thereof) from Developer if all
infrastructure required by the Project Approvals, Subsequent Approvals, and this
Agreement to serve that portion of the Project covered by the Building Permit is
in place or is scheduled to be in place prior to issuance of the Certificate of
Completion for the final commercial unit, or the Final Inspection of the final
residential unit, the Developer is in compliance with all provisions of this
Agreement, the DDA, the Project Approvals and Subsequent Approvals.
Consistent with Subsection 5.4 of this Agreement, in no event shall Building
Permits be allocated on any annual numerical basis or on any arbitrary allocation
basis.
Moratorium on Development. Nothing in this Agreement shall prevent City,
whether by the City Council or through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and issuance of Subsequent
Approvals and Building Permits and on the finalizing of Building Permits by
means of a final inspection or certificate of occupancy, provided that the
moratorium is adopted or imposed (i) on a Citywide basis to all substantially
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6.
similar types of development projects and properties with similar land use
designations and (ii) as a result of a utility shortage or a reasonably foreseeable
utility shortage including without limitation a shortage of water, sewer treatment
capacity, electricity or natural gas.
Developer Agreements.
6.1
6.2
6.3
Development as a Mixed Use Project. Developer shall comply with (i) this
Agreement, (ii) the DOA, (iii) the Project Approvals, (iv) all Subsequent
Approvals, if any, for which it was the applicant or a successor in interest to the
applicant, and (iv) the MMRP of the MND and any subsequent or supplemental
environmental actions resulting from or required by any Subsequent Approvals.
In the event of a conflict between the DOA, this Agreement, the Project
Approvals and the Subsequent Approvals, priority shall be given first to the
provisions of the DOA, second to those of this Agreement, third to the Project
Approvals, and last to the Subsequent Approvals. Any administrative and support
offices or other structures and amenities to serve the occupants of the Project are
considered to be part of the residential use of the Property.
Condition of Dedicated or Conveyed Property. All lands and interests in land
dedicated to City shall be free and clear of liens and encumbrances other than
easements or restrictions that do not preclude or interfere with use of the land or
interest for its intended purpose, as reasonably determined by City.
Los Angeles Avenue Area of Contribution (LAAOC) Fees.
Developer shall pay the LAAOC fee for commercial uses of $17,754.25 based
upon a commercial rate of $56,749 per acre and contemplated commercial space
of 13,628 square feet (0.31 acres). The fee shall be paid prior to issuance of the
Final Inspection or Certificate of Occupancy for each building (A, B 1, 82, C, D,
E and F). If the LAAOC Fee is not fully paid by August 31, 2022, then
commencing on September 1, 2022, the unpaid portion of the LAAOC Fee shall
be adjusted by any increase in the Consumer Price Index (CPI) until all such fees
have been paid. The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all
urban consumers within the Los Angeles/Long Beach/ Anaheim metropolitan area
by comparing the CPI for the month of October for the year in which the amount
is paid with the same month in 2020; provided, however, in the event there is a
decrease in the CPI, the fee shall remain at its then current amount (such process
for determination being referred to herein as the "CPI Methodology").
6.4 Traffic Mitigation Fee. As a condition of the issuance Final Inspection for each
residential dwelling unit within the boundaries of the Property, Developer shall
pay City a one-time traffic mitigation fee as described herein ("Citywide Traffic
Fee"). The Citywide Traffic Fee may be expended by City in its sole and
unfettered discretion. The amount of the Citywide Traffic Fee shall be One
Thousand One Hundred and Thirty-three Dollars ($1,133) per residential unit.
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The Citywide Traffic Fee shall be adjusted annually commencing January 1, 2022
and annually thereafter by the change in the Caltrans Highway Bid Price Index
Bid Price Index) for Selected California Construction Items for the twelve (12)
month period available on December 31 of the preceding year ("annual
indexing"). In the event there is a decrease in the Bid Price Index for any annual
indexing, the current amount of the fee shall remain until such time as the next
subsequent annual indexing which results in an increase.
6.5 Air Quality Fees. Developer agrees that the Mitigation Measures included in the
City Council approved MND and MMRP, or subsequent environmental clearance
document approved by the Council, set forth the mitigation requirements for air
quality impacts. Developer agrees to pay to City a one-time air quality mitigation
fee, as described herein ("Air Quality Fee"), in satisfaction of the Transportation
Demand Management Fund mitigation requirement for the Project. The Air
Quality Fee may be expended by City in its sole discretion for reduction of
regional air pollution emissions and to mitigate residual Project air quality
impacts. The Air Quality Fee shall be One Thousand Seven Hundred and Nine
Dollars ($1,709.00) per residential dwelling within the Property to be paid prior to
the issuance of a building permit for each residential dwelling unit in the Project.
If the Air Quality Fee is not paid by August 31, 2022, then commencing on
September 1, 2022, the unpaid portion of the Air Quality Fee shall be adjusted by
any increase in the Consumer Price Index (CPI) until all such 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 area
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 month of October. In the event there is a decrease in the CPI for
any annual indexing, the fee shall remain at its then current amount until such
time as the next subsequent annual indexing which results in an increase, such
process for determination being referred to herein as the CPI Methodology.
6.6 Art in Public Places Fee. Developer agrees to pay the Art in Public Places Fee
Art Fee") in effect for each mixed use building prior to the issuance of the
building permit for that mixed use building within the Project consistent with City
Resolution No. 2005-2408 or any Successor Resolution (1.0 percent of total
building valuations excluding land value and off-site improvement costs, for such
building); provided, however, that the amount of the Art Fee shall be offset, on a
dollar-for-dollar basis, for all art installed in the Project by or on behalf of
Developer.
6. 7 Other Development and Processing Fees. Developer agrees to pay all City capital
improvement, development, and processing fees as set forth on "Exhibit F"
hereof. Except as set forth on "Exhibit F" hereof, the City shall not impose upon
or charge any other amount to Developer associated with the Project as long as
the Project is constructed in a manner consistent with Residential Planned
Development 2018-01.
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6.8
6.9
Processing Fees. Within thirty (30) days of the Effective Date, Developer shall
pay all outstanding City processing costs related to preparation of this Agreement,
the Project Approvals and the MND.
Workforce Housing.
a) Developer shall not be entitled to any additional density bonuses or incentives
or concessions as otherwise granted pursuant to State law, and further agrees,
in consideration for the density obtained through the Project Approvals, to
construct on site and income restrict twelve (12) residential rental units (all for
moderate income levels) to eligible tenants meeting moderate income
thresholds for the life of the Project. The twelve units shall consist of eight
8) studio apartments and four (4) two bedroom apartments, as identified on
Exhibit "D" hereof; provided, however, that Developer may change the
location of such units within the Project, subject to the reasonable approval of
the City Manager. One studio and one two-bedroom apartment (for a total of
two units) shall be handicap accessible and shall be reserved for and occupied
by persons eligible for such accommodations, to the extent there is a qualified
handicapped affordable person ready to occupy such unit. Should there be a
qualified moderate income prospective tenant desiring to rent such unit but all
such units are rented, Developer shall add such prospective tenant to the
waiting list until such affordable handicap accessible units becomes available.
When an affordable unit that is not handicap accessible becomes available, the
non-handicapped affordable tenant who occupies the affordable handicap unit
shall be relocated to another affordable unit that is not handicap accessible in
order to allow the qualified handicap tenant to occupy the handicap accessible
unit. Developer shall include a provision in the non-handicap affordable unit
lease that the non-handicap affordable tenant agrees to be relocated, at
Developer cost, as soon as the non-handicap unit becomes available.
b) "Moderate income households" shall meet the criteria of one hundred twenty
percent (120%) or less of the County Median Income, adjusted for household
size appropriate to the Unit. The household income amount for Moderate
Income households for any year shall be based on the amount most recently
published by HCD as the Household Income Limits for Ventura County
HCD Income Limits") or such successor information in the event the
referenced published information is no longer available. The household
income limit, affordability threshold and the affordable rent for moderate
income units must be based on an income equal or less than the amounts
stated in this paragraph, in accordance with the provision of the Affordable
Housing Agreement executed for the Project.
c) Rents for Moderate Income units will be calculated pursuant to Health and
Safety Code Section 50053, as may be amended, which states that rents will
be based on 30% of 110% of median income for the household size
appropriate to the unit, regardless of the actual household size living in the
unit. Per Health and Safety Code Section 50025.5 (h) "adjusted for family size
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appropriate to the unit" shall mean for a household of one person in the case
of a studio unit and three persons in the case of a two-bedroom unit. Under no
circumstance shall rent charged a moderate income household exceed the
market rental rate for the project. The maximum rents allowable in the
affordable units for 2020 are below. The figure adjusts annually as reflected
in changes to the California Department of Housing and Community
Development Department (HCD) Income Limits:
Unit Type Moderate
30% of 110% of AMI
Studio $1,882
2 Bedroom, 2 Bath $2,420
Illustrative Only: Figures are as ofSeptember 2020 and subject to change
d) Developer further agrees that no grading permit shall be issued until the
Affordable Housing Agreement is executed by the City and Developer, which
Affordable Housing Agreement shall become effective upon the issuance by
the City of the Certificate of Occupancy, as contemplated in this Agreement.
The Affordable Housing Agreement shall include, but not be limited to all
terms addressed in this section 6.9.
e) Developer agrees not to convert the residential units in the Project to for-sale
condominiums, planned development, stock cooperative or other common
interest development, hotel/motel, or as congregate care or assisted living
facility for the life of the Project. Developer further agrees it shall not permit
any of the residential units to be used on a transient basis and shall not rent
any unit for a period of less than monthly.
f) Developer agrees that the units used to house qualified moderate income
tenants shall at all times and in all manner the same as the market rate units
including, but not limited to the quality and maintenance of flooring, window
covers, appliances, sinks, bathtubs and toilets, HV AC, storage space and type,
and the number and location of required parking spaces.
g) Developer further agrees that it has the obligation to provide the required
number of affordable housing units as specified above regardless of the cost to
construct said housing units.
h) At no time shall any of the affordable units be rented to an employee, agent,
officer, contractor, subcontractor, affiliated company or subsidiary of
Developer, except as otherwise permitted by local, state or federal law.
i) Developer shall place a deposit of $5,000 with the City to administer the
affordable provision and other requirement of the Affordable Housing
Agreement. Use of the fee shall be documented and forwarded to Developer
by December 31 st of each year. Any expenses charged against Developer's
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deposit shall be replenished by Developer on or before February 1 of each
year commencing after the first residential occupancy for the Project. The
maximum amount of annual deposit the City shall have on hand after
February 1 of each year is $5,000.
6.10 If any conflict exists between this Agreement and the Affordable Housing
Agreement, the Affordable Housing Agreement shall control to the extent of any
such conflict.
6.11 Annual Review Procedures. Developer agrees to meaningfully participate with
the City in compliance with Section 15.40.150 of the Moorpark Municipal Code
and any provision amendatory or supplementary thereto for annual review of this
Agreement and further agrees that the annual review shall include evaluation of
its compliance with the approved MND and MMRP; provided, however, the
failure of City to conduct any such annual review shall not, in any manner,
constitute a breach of this Agreement by Developer.
6.12 Eminent Domain. Developer agrees that any election to acquire property by
eminent domain shall be at City's sole discretion, and only after compliance with
all legally required procedures including but not limited to a hearing on a
proposed resolution of necessity.
6.13 Intentionally Deleted
6.14 Fee Protest Waiver. Developer agrees that any fees and payments specifically
provided for in this Agreement for the Project shall be made without reservation,
and Developer expressly waives the right to payment of any such fees under
protest pursuant to California Government Code Section 66020 and statutes
amendatory or supplementary thereto. Developer further agrees that the fees it
has agreed to pay pursuant to Subsections 6.3, 6.4. and 6.5 of this Agreement are
not public improvement fees collected pursuant to Government Code Section
66006 and statutes amendatory or supplementary thereto.
6.15 CPI Indexes. In the event the "CPI" referred to in Subsections 6.3 and 6.5 or the
Bid Price Index referred to in Subsection 6.4 is discontinued or revised, a
successor index with which the "CPI" and or Bid Price Index are replaced shall be
used in order to obtain substantially the same result as would otherwise have been
obtained if either or both the "CPI" and Bid Price Index had not been
discontinued or revised.
6.16 [INTENTIONALLY LEFT BLANK].
6.17 Insurance.
6.17.1 From and after the Effective Date and the Close of Escrow, as that term is
defined in the DOA, and for so long as title to the Property is held by
Developer, Developer shall obtain and maintain at no cost or expense to
the City, with a reputable and financially responsible insurance company
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reasonably acceptable to the City: (i) after the opening of the Project for
business, commercially reasonable casualty insurance for the
Improvements in an amount not less than the replacement cost of the
Improvements (subject to commercially reasonable deductibles) with a
reasonable inflation rider; (ii) commercial broad form general liability
insurance, insuring against claims and liability for bodily injury, death, or
property damage arising from the construction, use, occupancy, condition,
or operation of the Property, which liability insurance shall provide
combined single limit protection of at least $5,000,000 and shall include a
reasonable inflation rider, contractual liability coverage and products and
completed operations coverage, and (iii) commercial automobile liability
insurance of at least $1,000,000 combined single limit. Such liability
insurance policies shall name the City and its council members, board
members, officers, agents and employees as additional insured.
6.17.2 Before commencement of any demolition or construction work by
Developer on any portion of the Property owned by Developer, Developer
shall obtain and maintain in force until completion of such work: (i) "all
risk" builder's risk insurance, including coverage for vandalism and
malicious mischief, in a form and amount and with a company reasonably
acceptable to the City, and (ii) workers' compensation insurance covering
all persons employed by Developer in connection with work on the
Project, or any portion thereof. During the construction of Improvements
on any portion of the Property by Developer, such builder's risk insurance
shall cover improvements in place and all material and equipment at the
job site furnished under contract, but shall exclude contractors',
subcontractors', and construction managers' tools and equipment and
property owned by contractors' and subcontractors' employees.
6.17.3 Each architect and each licensed engineer engaged by Developer for
completion of the construction work shall provide professional liability
insurance with a limit of liability of at least One Million Dollars
1,000,000.00).
6.17.4 Developer shall also furnish or cause to be furnished to the City evidence
satisfactory to the City that any contractor with whom it has contracted for
the performance of work on the Property or otherwise pursuant to this
Agreement carries workers' compensation insurance as required by law.
6.17.5 With respect to each policy of insurance required above, Developer and
each of Developer's general contractors, engineers and architects shall
furnish to the City a certificate on the insurance carrier's form setting forth
the general provisions of the insurance coverage promptly after written
request by City showing the additional insureds. The certificate shall also
be furnished by Developer prior to commencement of construction of any
Improvements.
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7.
6.17.6 All such policies required by this Section shall contain a waiver of the
insurer of all rights of subrogation against the City and other additional
insureds. All such insurance shall have deductible limits which shall be
commercially reasonable.
City Agreements.
7.1
7.2
7.3
7.4
7.5
Commitment of Resources. At Developer's expense, City shall commit
reasonable time and resources of City staff to work with Developer on the
expedited processing of applications for Project Approvals and all Subsequent
Approvals and Building Permits for the Project area and, if requested in writing
by Developer, shall use overtime and independent contractors whenever possible.
Easement and Fee Title Acquisitions. If requested in writing by Developer and
limited to City's legal authority, City at its sole and absolute discretion shall
proceed to acquire, at Developer's sole cost and expense, easements or fee title to
land in which Developer does not have title or interest in order to allow
construction of public improvements required of Developer including any land
which is outside City's legal boundaries. The process shall generally follow
Government Code Section 66462.5 et seq. and shall include the obligation of
Developer to enter into an agreement with City, guaranteed by cash deposits and
other security as the City may require, to pay all City costs including but not
limited to, acquisition of the interest, attorney fees, appraisal fees, engineering
fees, City direct costs, including without limitation staff costs and City overhead
expenses.
Concurrent Entitlement Processing. City agrees that whenever possible, as
determined by City in its sole discretion, to process concurrently all land use
entitlements for the Project so long as the applications for such entitlements are
deemed complete" in compliance with the requirements of Chapter 4.5 of
Division 1, "Review and approval of Development Projects" (Permit Streamlining
Act) of the California Government Code.
Park Fees. City agrees that no Park Fee is required of Developer as the proposed
Plaza space within the Project meets all of the obligations under applicable law
for park land dedication.
Streetscape Improvements. City shall construct or cause to be constructed that
portion of the streetscape improvements within the City's existing Right-of-Way
R-O-W Work"), as shown on the attached Exhibit "B". The improvements
shall be located within the public right-of-way on the south side of High Street
along the frontage of project area. This area is approximately west of the High
Street/Walnut Street Intersection and extending easterly beyond the High
Street/Bard Street Intersection. Such improvements shall accommodate
connection with the Project and be consistent with the Downtown Streetscape
Plan, and to the extent that they can be consistent with Street Depot landscaping
plans, civil engineering and Hardscape/Landscape plans approved by the City as
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8.
9.
shown on Exhibit "C". Development and construction of the streetscape and the
cost of any change orders reasonably required will be borne by the City.
7.6 [INTENTIONALLY LEFT BLANK]
7. 7 Ground Floor Commercial or Residential Space Conversion. The Developer shall
construct a total of approximately 13,628 square feet of commercial space,
including approximately 8,371 square feet of ground floor commercial space and
approximately 5,257 square feet of stand-alone commercial space as part of the
Project. Developer shall utilize commercially reasonable means to lease the
commercial retail spaces; provided, however, in the event, despite the
commercially reasonable efforts of Developer to lease the commercial retail
spaces, and only and upon sufficient showing to, and approval by, the City
Council (such as monthly marketing showing number of inquiries, who inquired
and response efforts, marketing frequency, attempted rental rates) made at any
time after the first anniversary of the Certificate of Occupancy for each
commercial space, Developer may convert the commercial spaces to "active live-
work," residential uses. Active uses are those uses which remain open to the
public during regular business hours, generate a high volume of customer foot
traffic, provide window displays to promote views into the business, and that the
public may see goods that are typically carried away by customers or provide
services of a personal or business nature. Developer may convert ground-floor
unoccupied residential or live-work units to commercial retail spaces, with City
Manager approval, provided: (i) those units are not assigned or otherwise counted
towards the Project's affordable housing obligation or as a handicap accessible
unit; and (ii) the amount of square footage of the unit converted together with all
other commercial space in the Project does not exceed 15,018 square feet, unless
that conversion is accompanied by a modification to RPD 2018-01.
State or Federal Law and Regulations. In the event that any state or federal law or
regulation enacted after the date the Effective Date prevents or precludes compliance
with any provision of the Agreement or requires changes in the plans or permits approved
or issued by the City, and the City and Developer concur in those determinations, then
such provision shall be suspended, or with Developer's written consent, modified or
extended as necessary to comply with such state or federal law or regulation, as required
by a court of competent jurisdiction or as mutually agreed by the Parties. In addition,
Developer shall have the right to challenge such law or regulation, and in the event such
challenge is successful, this Agreement shall remain unmodified and in full force and
effect.
Demonstration of Good Faith Compliance. In order to ascertain compliance by
Developer with the provisions of this Agreement, the Agreement shall be reviewed
annually in accordance with Moorpark Municipal Code Chapter 15 .40 or any successor
thereof then in effect. The failure of City to conduct any such annual review shall not, in
any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate
the obligations of or benefits granted to Developer hereunder or render this Agreement
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invalid or void. At the same time as the referenced annual review, City shall also review
Developer's compliance with the MMRP.
10. Authorized Delays. This Section shall not apply to the DOA, as delays thereunder are
governed by Section 6.6 thereof. Performance by any Party of any obligations hereunder
that are not construction obligations under the DOA, other than payment of fees, shall be
excused during any period of "Excusable Delay", as hereinafter defined, provided that the
Party claiming the delay gives written notice of the delay to the other Parties as soon as
possible after the same has been ascertained. For purposes hereof, Excusable Delay shall
mean delay that directly affects, and is beyond the reasonable control of, the Party
claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c)
riot; ( d) strike, picketing or other labor dispute; ( e) shortage of materials or supplies; (f)
damage to work in progress by reason of fire, flood, earthquake or other casualty; (g)
failure, delay or inability of City or other local government entity to provide adequate
levels of public services, facilities or infrastructure to the Property including, by way of
example only, the lack of water to serve any portion of the Property due to drought; (h)
delay caused by a delay by other third party entities which are required to approve plans
or documents for Developer to construct the Project, or restrictions imposed or mandated
by such other third party entities or governmental entities other than City, (including but
not limited to, Ventura County Watershed Protection District); or (i) delays resulting
from or related to COVID-19 or any similar virus, public health crisis or pandemic, U)
litigation brought by a third party attacking the validity of this Agreement, a Project
Approval, a Subsequent Approval or any other action necessary for development of the
Project.
11. Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached this
Agreement ("Developer Default") if it:
11.1.1 Practices any fraud or deceit upon City; or willfully violates any order,
ruling or decision of any regulatory or judicial body having jurisdiction
over the Property or the Project, provided that Developer may contest any
such order, ruling or decision by appropriate proceedings conducted in
good faith, in which event no breach of this Agreement shall be deemed to
have occurred unless and until there is a final adjudication adverse to
Developer; or
11.1.2 Fails to make any payments required under this Agreement within twenty
20) business days after City gives written notice to Developer that the
same is due and payable; or
11.1.3 Breaches any of the other material provisions of this Agreement and fails
to cure the same within thirty (30) days after City gives written notice to
Developer of such breach ( or, if the breach is not able to be cured within
such thirty (30) day period, Developer fails to start to cure the same within
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thirty (30) days after delivery of written notice by City of such breach or
fails to thereafter diligently prosecute the cure to completion).
11.1.4 Breaches the terms of the DOA, and fails to cure such breach within the
cure period, if any, provided under the DOA.
11.2 Default by City. City shall be in breach of this Agreement if it breaches any of
the provisions of this Agreement and fails to cure the breach within thirty (30)
days after Developer gives written notice to City of the breach ( or, if the breach is
not able to be cured within such thirty (30) day period, City fails to start to cure
the same within thirty (3 0) days after delivery of written notice from Developer of
such breach or fails to thereafter diligently prosecute the cure to completion)
City Default").
11.3 Content of Notice of Violation. Every notice of breach shall state in writing with
specificity that it is given pursuant to this section of this Agreement, the nature of
the alleged breach, and the manner in which the breach may be satisfactorily
cured. Every notice shall state the applicable period to cure. The notices shall be
given in accordance with Section 21 hereof.
11.4 Remedies for Breach. The Parties acknowledge that remedies at law, including
without limitation money damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and scope of the Project. The
Parties also acknowledge that it would not be feasible of possible to restore the
Property to its natural condition once implementation of the Agreement has
begun. Therefore, the Parties agree that the remedies for breach of this
Agreement shall be limited to the remedies expressly set forth in this subsection.
If the breach is a City Default, Developer shall be entitled to seek injunctive
relief, declaratory relief, specific performance, but in no event shall Developer be
entitled to any monetary damages, including but not limited to, damages for lost
profits or consequential damages). In the event this Agreement is terminated by
City pursuant to the provisions of Chapter 15.40 of the Moorpark Municipal
Code, and such termination is found invalid or unenforceable by a court of
competent jurisdiction, Developer shall not be entitled to monetary damages for
the termination, loss profits, or consequential damages incurred that are the result
of the termination.
11.5 In addition, and notwithstanding any other language of this Agreement, if the
breach is of Subsection 6. 9 or 6.11 of this Agreement, City shall have the right to
withhold the issuance of building permits from the date that the notice of violation
was given pursuant to Subsection 11.3 hereof until the date that the breach is
cured as provided in the notice of violation.
11.6 Nothing in this subsection shall be deemed to preclude City from prosecuting a
criminal action against Developer if it violates any City ordinance or State statute.
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12. Mortgage Protection.
12.1 Discretion to Encumber. The Parties hereto agree that this Agreement shall not
prevent or limit Developer, in any manner, at Developer's sole discretion, from
encumbering the Property or any portion thereof or any improvements thereon
then owned by such person with any mortgage, deed of trust or other security
device ("Mortgage") securing financing with respect to the Property or such
portion, to the extent permitted by the DOA. Any such permitted mortgagee or
trust deed beneficiary of the Property or any portion thereof or any improvements
thereon and its successors and assigns ("Mortgagee") shall be entitled to the
following rights and privileges:
12.2 Lender Requested Modification/Interpretation. City acknowledges that the
lenders providing financing to Developer for the Property may request certain
interpretations and modifications of this Agreement. City therefore agrees upon
request, from time to time, to meet with Developer and representatives of such
lenders to discuss in good faith any such request for interpretation or
modification. The City will not unreasonably withhold its consent to any such
requested interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this Agreement or the
DOA, including, without limitation, Sections 4.2, 4.3 and 4.4 thereof, and the City
Manager is specifically authorized to make such interpretations or modification
on behalf of the City, provided, further, that any modifications of this Agreement
shall be subject to the provisions of this Agreement pertaining to modifications
and amendments.
12.3 Mortgage Protection. This Agreement shall be superior and senior to the lien of
any Mortgage. Notwithstanding the foregoing, any lender that obtains a mortgage
or deed of trust against the Property or the Project shall be entitled to the
following rights and privileges:
12.3.1 Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish or impair the lien of any Mortgage made
in good faith and for value, but this Agreement shall be binding and
effective against every owner of the Property, or part thereof, whose title
thereto is acquired by foreclosure, trustee sale or otherwise; provided,
however, such owner shall not be responsible for any matters that occurred
prior to their acquisition of the Property or such portion.
12.3.2 The mortgagee or beneficiary under any Mortgage may submit to City a
written request to receive a copy of any notice of default given by City to
Developer under this Agreement, but the request must include the address
for notices for the mortgagee or beneficiary and a copy of the recorded
Mortgage.
12.3.3 If the City timely receives a request under Section 12.3.2 above that
complies with Section 12.3 .2 above, then within ten ( 10) days after City
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13.
14.
sends to Developer a notice of default under this Agreement, City shall
send a copy of such notice to the applicable mortgagee or beneficiary at
the address for notices in its request. The mortgagee or beneficiary shall
then have the right, but not the obligation, to cure the applicable
Developer Default within the cure period provided to Developer under this
Agreement, subject to the provisions of Section 12.3.5, below.
12.3.4 Any mortgagee or beneficiary under a Mortgage who acquires title to or
possession of the Project or any portion thereof, by any means and any
person or entity who acquires title to all or any portion of or interest in the
Project by deed in lieu of foreclosure, shall take title and possession of the
Project subject to the terms of this Agreement, but shall not be obligated to
complete the Project or pay any fees accruing after it acquires title or
possession, if it elects to terminate this Agreement by written notice to
City within 30 days after acquiring title or possession; however, no such
termination shall affect the City's ability to enforce all other governmental
approvals or permits, and conditions of approval (including dedication
requirements) for the Project.
12.3.5 If a non-monetary default is not cured by Developer within thirty (30)
days after written notice by City to Developer or a monetary default is not
cured within twenty (20) business days after written notice by City to
Developer, then each Mortgagee shall be entitled to receive written notice
from City of the applicable default by Developer under this Agreement
provided the Mortgagee has delivered a written request to the City for
such notice and shall have provided its address for notices in writing to the
City. Each such Mortgagee shall have a further right, but not the
obligation, to cure such default for an additional period of thirty (30) days
after delivery of such notice of default by City to the Mortgagee. City
shall not commence legal action against Developer by reason of
Developer's breach without allowing the Mortgagee to cure the same as
specified herein.
Estoppel Certificate. At any time and from time to time, Developer may deliver written
notice to City and City may deliver written notice to Developer requesting that such Party
certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in
full force and effect and a binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment, and (iii) the requesting
Party is not in breach of this Agreement, or if in breach, a description of each such
breach. The Party receiving such a request shall execute and return the certificate within
ten ( 10) days following receipt of the notice. City acknowledges that a certificate may be
relied upon by successors in interest to the Developer who requested the certificate and
by holders of record of deeds of trust on the portion of the Property in which that
Developer has a legal interest.
Administration of Agreement. Any consent or approval herein to be given by the City
may be given by the City Manager provided it is expressed in writing. Any decision by
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City staff concerning the interpretation and administration of this Agreement and
development of the Property in accordance herewith may be appealed by the Developer
to the City Council, provided that any such appeal shall first be filed with the City Clerk
of City within sixty (60) days after the affected Developer receives written notice of the
staff decision. The City Council shall render its decision to affirm, reverse or modify the
staff decision within thirty (30) days after the appeal was filed. The Developer shall not
seek judicial review of any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance with the provisions of
Chapter 15 .40 of the Moorpark Municipal Code of City or any successor provisions
thereof then in effect, this Agreement may be amended or terminated, in whole or in part,
by mutual consent of City and Developer, or their respective successors and assigns.
16. Exemption for Amendments of Project Approvals. No amendment of the DOA, a Project
Approval or Subsequent Approvals shall require an amendment to this Agreement and
any such amendment shall be deemed to be incorporated into this Agreement at the time
that the amendment becomes effective, provided that the amendment is consistent with
this Agreement and does not alter the permitted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the Project Approvals or
Subsequent Approvals. However, any amendment to a Project Approval or Subsequent
Approval which is inconsistent with the terms of the DOA shall require an amendment of
the ODA.
17. Developer Indemnification. Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and agents from and against any
and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or
judgments (collectively, " Claims") arising out of, or resulting in any way from,
Developer's performance pursuant to this Agreement including, but not limited to,
Developer's construction of the Project on the Property, failure to comply with provisions
of the California Labor Code, including but not limited to the payment of prevailing
wages, to the extent they apply to the Project, and any injury sustained by any person in
connection with the construction or partial construction of buildings and improvements
on the Property by or on behalf of Developer. In addition, Developer shall indemnify,
defend with counsel approved by City, and hold harmless City and its officers, employees
and agents from and against any action or proceeding to attack, review, set aside, void or
annul this Agreement, the DOA, or any provision of this Agreement or of the ODA, the
environmental documents prepared and approved in connection with the approval of the
Project, or any Project Approval or Subsequent Approval or modifications thereto, or any
other subsequent entitlements for the project and including any related environmental
approval. Notwithstanding the foregoing, Developer shall have no obligations under this
Section 17 for Claims arising out of, or resulting in any way from, the gross negligence or
willful misconduct of City, its officers, employees or agents, except that if a final court
judgment is rendered with respect to that Claim and the City is found not liable for gross
negligence or willful misconduct, then Developer shall be obligated to reimburse City for
its attorneys' fees and costs in defending itself from that Claim.
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18. Time of Essence. Time is of the essence for each provision of this Agreement of which
time is an element.
19. Operative Date. This Agreement shall become operative on the Operative Date, being
the date the Enabling Ordinance becomes effective pursuant to Government Code Section
36937.
20. Term; Tolling and Extension During Legal Challenge or Moratoria. This Agreement
shall remain in full force and effect for a term of twenty (20) years commencing on the
Operative Date or until one year after the issuance of the final building permit for
occupancy of the last unit of the Project, whichever occurs last, unless said term is
amended or the Agreement is sooner terminated, as otherwise provided herein.
Expiration of the term or earlier termination of this Agreement shall not affect any
Project Approval or Subsequent Approval or Building Permit or Final Building Permit
that has been granted or any right or obligation arising independently from such Project
Approval or Subsequent Approval or Building Permit or Final Building Permit.
Upon expiration of the term or earlier termination of this Agreement, the Parties shall
execute any document reasonably requested by any Party to remove this Agreement from
the public records as to the Property, and every portion thereof, to the extent permitted by
applicable laws.
In the event this Agreement, any of the land use entitlements related to the Project, the
MND, or any subsequent approvals or permits required to implement the land use
entitlements for the Project or this Agreement are subjected to legal challenge and
Developer is unable to proceed with development of the Project due to such legal
challenge ( or Developer provides written notice to the City that it is electing not to
proceed with development of the Project until such legal challenge is resolved to
Developer's reasonable satisfaction), the Term of this Agreement and timing for
obligations imposed by this Agreement shall be extended and tolled during such legal
challenge until the entry of a final order or judgment upholding this Agreement, the
MND, or the land use entitlements, approvals, or permits related to this Agreement, or the
litigation is dismissed by stipulation of the parties; provided, however, that
notwithstanding the foregoing, Developer shall have the right to elect, in Developer's
sole and absolute discretion, to proceed with development of the Project at any point by
providing the City written notice that it is electing to proceed, in which event the tolling
of the Term of this Agreement shall cease as of the date of such notice. Similarly, if
Developer is unable to develop the Project due to the imposition by the City or other
public agency of a development moratoria for a public health and safety reason umelated
to the performance of Developer's obligations under this Agreement (including without
limitation, moratoria imposed due to the unavailability of water or sewer to serve the
Project), then the Term of this Agreement and the timing for obligations imposed
pursuant to this Agreement shall be extended and tolled for the period of time that such
moratoria prevents development of the Project.
21. Notices. All notices and other communications given pursuant to this Agreement shall be
in writing and shall be deemed received when personally delivered or upon the third (3rd)
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day after deposit in the United States mail, registered or certified, postage prepaid, return
receipt requested, to the Parties at the addresses set forth in Exhibit "E" attached hereto
and incorporated herein. Any Party may, from time to time, by written notice to the
other, designate a different address which shall be substituted for the one above specified.
22. Entire Agreement. This Agreement and those exhibits and documents referenced herein
contain the entire agreement between the Parties regarding the subject matter hereof, and
all prior agreements or understandings, oral or written, are hereby merged herein. This
Agreement shall not be amended, except as expressly provided herein.
23. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any
other provision, whether or not similar; nor shall any such waiver constitute a continuing
or subsequent waiver of the same provision. No waiver shall be binding, unless it is
executed in writing by a duly authorized representative of the Party against whom
enforcement of the waiver is sought.
24. Severability. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not rendered impractical to perform,
taking into consideration the purposes of this Agreement.
25. Relationship of the Parties. Each Party acknowledges that, in entering into · and
performing under this Agreement, it is acting as an independent entity and not as an agent
of any of the other Parties in any respect. Nothing contained herein or in any document
executed in connection herewith shall be construed as creating the relationship of
partners, joint ventures or any other association of any kind or nature between City and
Developer, jointly or severally.
26. No Third Party Beneficiaries. This Agreement is made and entered into for the sole
benefit of the Parties and their respective successors in interest. No other person shall
have any right of action based upon any provision of this Agreement.
27. Recordation of Agreement and Amendments. This Agreement and any amendment
thereof shall be recorded with the County Recorder of the County of Ventura by the City
Clerk of City within the period required by Chapter 15.40 of the Moorpark Municipal
Code of City or any successor thereof then in effect.
28. Cooperation Between City and Developer. City and Developer shall execute and deliver
to the other all such other and further instruments and documents as may be reasonably
necessary or convenient to carry out the purposes of this Agreement.
29. Rules of Construction. The captions and headings of the various sections and subsections
of this Agreement are for convenience of reference only, and they shall not constitute a
part of this Agreement for any other purpose or affect interpretation of the Agreement.
Should any provision of this Agreement be found to be in conflict with any provision of
the Purchase and Sale Agreement, the Project Approvals or the Subsequent Approvals,
the provision of this Agreement shall prevail.
21-
I2853-0062\23 l 5175v22.doc 25
30. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and
equally by the Parties, and it shall not be construed against any Party on the ground that
the Party prepared the Agreement or caused it to be prepared.
31. Governing Law and Venue. This Agreement is made, entered into, and executed in the
County of Ventura, California, and the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or proceeding related to, or arising from,
this Agreement shall be filed in the appropriate court having jurisdiction in the County of
Ventura.
32. Attorneys' Fees. In the event any action, suit or proceeding is brought for the
enforcement or declaration of any right or obligation pursuant to, or as a result of any
alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable
attorneys' fees and litigation expenses and costs, and any judgment, order or decree
rendered in such action, suit or proceeding shall include an award thereof.
33. Counterparts. This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original, but all of which constitute one and the same instrument.
34. Authority to Execute. Developer warrants and represents that to its knowledge as of the
Operative Date and with respect to each entity that is defined as Developer: (i) it is duly
organized and existing; (ii) it is duly authorized to execute and deliver this Agreement;
iii) by so executing this Agreement, Developer is formally bound to the provisions of
this Agreement; (iv) Developer's entering into and performance of its obligations set
forth in this Agreement do not violate any provision of any other agreement to which
Developer is bound; and (v) there is no existing or threatened litigation or legal
proceeding of which Developer is aware that could prevent Developer from entering into
or performing its obligations set forth in this Agreement.
22-
l 2853-0062\2315 l 75v22.doc 26
IN WITNESS WHEREOF, the Parties have execut ed this Development Agreement
effective as of the Operative Date .
The Daly
a Cali fo ·
a ly resident
l/i"rie,U1t _J, Dtt/'j
1
PnsidMc-
I2853-0062\23 15 175v22.do c
CITY OF MOO RP ARK
S. Parvin , Mayor
ATTEST:
KyS~g11,~
23-27
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 Ventura
On __ Oe,to __ b_e,r_1--_?_rµ;_1,,o __ before me, Ky Spangler, Notary Public
insert name and title of officer)
personally appeared 1/illC-tMf J . !)x{ ~
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/soo/~ executed the same in his/Ref/~ authorized capacity(+ss), and that by
his/Ref/~ 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 _lt-Sw-~----tv:--
1KY SPANGLER
Notary Public • Ca lifornia z
Ventura Cou'nty i::
Commiuion N2191472 -
My Comm. Expires Apr 13, 2021
Seal)
28
29
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark, California 93021 I Phone (805) 517 -6200 I Fax (805) 532 -22 05
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA
COUNTY OF VENTURA
CITY OF MOORPARK
ss.
On this 23rd day of October in the year 2020, before me, Ky Spangler, City
Clerk of the City of Moorpark, personally appeared Janice S. Parvin, who proved to
me on the basis of satisfactory evidence to be the person whose name is
subscribed to the within instrument, and who is personally known to me to be the
person whose name is subscribed to the within instrument, and acknowledged to
me that she executed the same in her authorized capacity as the Mayor of the City
of Moorpark, and that by her signature on the instrument, acknowledged to me that
the City of Moorpark 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
City Clerk
JAN ICE S. PARVIN
Mayor
CHRISENEGREN
Coun cilmember
ROSEANN MIKOS, Ph.D.
Coun cilmember
DAVID POLLOCK
Councilm ember
KEN SIMONS
Coun ci lmember
30
EXHIBIT "A-1"
PROPERTY CONVEYED BY CITY THROUGH DDA)
LEGAL DESCRIPTION OF PROPERTY
Parcels 2 and 3 of Parcel Map No. 2017-01 in the City of Moorpark, County of Ventura, State of
California, as Document No. 20190708 -00076500 -0, comprising a combined total of 93,664
square feet (approximately 2.15 acres), as depicted on Exhibit A-2.
A-1 -1
12853-0062\23 l 5175v22.doc 31
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A-1 -2
12853-0062\23 I5 175v22.doc 32
EXHIBIT "A-2"
SUBLICENSE AGREEMENT WITH PROPERTY LICENSED FROM VCTC)
SUBLICENSE AGREEMENT
This SUBLICENSE AGREEMENT ("Agreement") is made and entered into as of _
20_, by and between the CITY OF MOORPARK, a municipal
corporation ("SUBLICENSOR") and the DALY GROUP, INC., a corporation
SUBLICENSEE") with the consent of the VENTURA COUNTY TRANSPORTATION
COMMISSION, a public entity ("VCTC"); upon and in consideration of the agreements,
covenants, terms, and conditions below:
A. Sublicensor, as licensee, and VCTC, as licensor, have entered into a
Ventura County Transportation Commission License Agreement dated
20_ which covers, among other things, the sublicensed
property described herein ( the "License Agreement"). Sublicensee has reviewed the
License Agreement and is familiar with the terms hereof.
B. Sublicensee is developing property adjacent to or near the sublicensed
property described herein, and desires to supplement its development project with use
of the sublicensed property.
PART I -BASIC SUBLICENSE PROVISIONS
1. Description of Sublicense Property: A portion of the VCTC railroad right of
way near Mile Post ___ located in Moorpark, CA as shown on Exhibit "A"
attached.
2. Approximate Area: 18,743 ± square feet
3. Use of Sublicense Property: Fencing, parking stalls, landscaping and other
hardscape improvements as shown on Exhibit "B"
attached. No other use is authorized by this Agreement.
4. Commencement Date: Effective as of the date of this Agreement.
5. Term: Five Years provided that in any event, this Sublicense shall expire upon
the expiration or earlier termination of the License Agreement.
6. Sublicense Fees:
A. Base Sublicense Fee: $1, payable January 1 of each calendar year.
7. Insurance Requirements: Insurance requirements are detailed in Section 16,
Insurance.
A-2 -l
l 2853-0062\2315175v22.doc 33
8. Sublicensor's Address:
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
Attn: Troy Brown, City Manager
9. Sublicensee's Address:
The Daly Group, Inc.
31255 Cedar Valley Dr., Ste. 323
Westlake Village, California 91362
Attn: Vince Daly
10. Facility: The uses identified in Section 2 and no others.
The foregoing Basic Sublicense Provisions and the General Sublicense Provisions set
forth in attached Part II are incorporated into and made part of this Agreement.
PART II -GENERAL SUBLICENSE PROVISIONS
1. Sublicense/Term.
1.1 Grant of License. SUBLICENSOR hereby grants to SUBLICENSEE a
non-exclusive license to use the real property described on the attached Exhibit "A" and
incorporated herein by reference, and described in Item 1 of the Basic License
Provisions (the "Sublicensed Property"), for the limited purpose of construction,
installation, operation, alteration, maintenance, reconstruction and/or removal of the
Facility described in Item 9 of the Basic License Provisions, and any usual, necessary
and related appurtenances thereto, for the purposes described in Item 2 of the Basic
License Provisions, together with rights for access and entry through existing driveways
or any replacement driveways authorized or installed by VCTC onto the Sublicensed
Property as necessary or convenient for the use of the Facility. In connection with this
Agreement, SUBLICENSEE, its officers, directors, employees, agents, customers,
visitors, invitees, licensees, and contractors (collectively, "SUBLICENSEE Parties"),
subject to the provisions hereof, may have reasonable rights of entry and access onto
the Sublicensed Property, with the time and manner of such entry and access to be
subject to VCTC's prior written approval. The land subject to the License Agreement,
any adjoining real property (or any interest therein) of VCTC and personal property of
VCTC located thereon shall hereinafter collectively be referred to as "VCTC Property."
1.2 Term of Agreement. The term of this Agreement ("Term") shall
commence on the "Commencement Date" specified in Item 3 of the Basic License
Provisions. This Agreement shall continue in full force and effect and will automatically
renew annually after the initial term, unless as provided in Item 5 of the Basic
Sublicense Provisions or otherwise terminated by the parties.
A-2 - 2
l 2853-0062\2315175v22.doc 34
1.3 Public Use. In addition to any and all other termination rights of VCTC
described herein, SUBLICENSEE hereby expressly recognizes and agrees that the
Sublicensed Property" is located on VCTC Property that may be developed for public
projects and programs which may be implemented by VCTC or other public agencies,
such as, but not limited to: rail and bus transitways, bikeways, walkways, beautification
projects, roadways, parking facilities, and/or any other public or other governmental
uses (collectively and individually "Public Use"); and that SUBLICENSEE's use of such
Sublicensed Property under this Sublicense is a temporary, interim use as to which
SUBLICENSEE has no right to nor expectation of use for any particular length of time
and that the License (and therefore this Sublicense) may be terminated by VCTC at any
time with one hundred eighty (180) days' written notice to SUBLICENSOR as set forth
in the License Agreement. Accordingly, as a condition to entering into this License,
SUBLICENSOR expressly acknowledges and agrees that:
a) VCTC may terminate this Sublicense as set forth above for any
Public Use, to be determined in the sole and absolute discretion of VCTC's Executive
Director, or designee;
b) SUBLICENSEE waives any objection to, opposition, or protest at
any approval proceeding; nor file suit to prevent or delay any Public Use when planned
or implemented on or adjacent to the Sublicensed Property;
c) If VCTC's Executive Director, or designee, at any time, or from time
to time, determines in his or her sole and absolute discretion, that there is a need for the
Sublicensed Property or any adjoining property for a Public Use and such Public Use
requires relocation or removal of Sublicensee's Improvements ("Improvements"),
SUBLICENSEE shall reconstruct, alter, modify, relocate or remove its Improvements, as
directed by VCTC or any parties having operating rights over the Premises, at
SUBLICENSEE's sole cost and expense, with said work being completed sixty (60)
days prior to expiration of termination period provided in written notice from
SUBLICENSOR or VCTC; and
d) SUBLICENSEE expressly assumes all risk of any future Public Use
as determined by VCTC and in the event VCTC terminates this License and requires
SUBLICENSEE to vacate the Sublicensed Property for any Public Use, SUBLICENSEE
shall not, as a result of such termination and vacation of the Sublicensed Property, be
entitled to receive any:
e) relocation assistance, moving expenses, goodwill or other
payments under the Uniform Relocation Assistance and Real Property Acquisition
Policies Act of 1970, as amended, 42 U.S.C. sections 4601 et seq. and/or the
California Relocation Assistance Law, as amended, California Government Code
sections 7260 et seq.; and
f) compensation under any eminent domain or inverse condemnation
law.
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12853-0062\23 I 5175v22.doc 35
SUBLICENSEE shall not be entitled to any damages under California's Eminent
Domain Law in the event of such termination.
1.4 Condition of Sublicensed Property. SUBLICENSEE acknowledges that it
has inspected and accepts the Sublicensed Property in its present condition as suitable
for the use for which this license is granted. Execution of this Agreement by
SUBLICENSEE shall be conclusive to establish that the Sublicensed Property is in a
condition which is satisfactory to SUBLICENSEE as of the Commencement Date.
2. Payments.
2.1 Sublicense Fee. As consideration for the rights given hereunder,
SUBLICENSEE agrees to pay to SUBLICENSOR the Base Sublicense Fee specified in
Item 6 of the Basic Sublicense Provisions,. The One-Time License Fee and the first
month's or first year's, as the case may be, Base Sublicense Fee are due and payable
upon execution of this Agreement. Thereafter, the Base Sublicense Fee, , shall be due
and payable, without demand, on or before one year, as the case may be, after the
Commencement Date and in each month or year, as the case may be thereafter. The
Base Sublicense fee for any fractional period at the end of the Term shall be prorated
on a daily basis and shall be reimbursed to SUBLICENSEE. If the Agreement is
terminated, and the SUBLICENSEE is not in breach of the Agreement at such time, the
Base Sublicense fee for any fractional period shall be prorated on a daily basis and
shall be reimbursed to SUBLICENSEE.
2.2 Late Charge. SUBLICENSEE acknowledges that late payment by
SUBLICENSEE of any payment owed under this Agreement will cause SUBLICENSOR
to incur costs not contemplated by this Agreement. Therefore, if any payment due from
SUBLICENSEE is not received by SUBLICENSOR within five (5) days of the date when
due, SUBLICENSEE shall pay to SUBLICENSOR an additional sum of ten percent
10%) of the overdue payment as a late charge, up to a maximum amount of $500 for
each late payment. The parties agree that this late charge represents a fair and
reasonable estimate of the administrative costs that SUBLICENSOR will incur by
reason of a late payment by SUBLICENSEE. Acceptance of any late payment charge
shall not constitute a waiver of SUBLICENSEE's default with respect to the overdue
payment, and shall not prevent SUBLICENSOR from exercising any of the other rights
and remedies available to SUBLICENSOR under this Agreement, at law or in equity,
including, but not limited to, the interest charge imposed pursuant to Section 24.5.
3. Taxes. SUBLICENSEE shall be liable for and agrees to pay promptly and prior
to delinquency, any tax or assessment, including but not limited to any possessory
interest tax, levied by any governmental authority: (a) against the Facility and its
operations, the Sublicensed Property and/or any personal property, fixtures or
equipment of SUBLICENSEE used in connection therewith, or (b) as a result of the
SUBLICENSEE Parties' use of the Sublicensed Property, or the Facility.
4. Construction. All work performed or caused to be performed by
SUBLICENSEE on the Sublicensed Property ("Work") shall be performed (i) in
A-2-4
l2853-0062\23 l 5175v22.doc 36
accordance with and any and all applicable laws, rules and regulations (including the
VCTC's rules and regulations), and (ii) in a manner which meets or exceeds the then
applicable standards of the industry for such work, and (iii) is satisfactory to VCTC. Prior
to commencement of any construction, maintenance, reconstruction, installation,
restoration, alteration, repair, replacement or removal (other than normal maintenance)
hereinafter, "Work") on the Sublicensed Property, SUBLICENSEE shall submit work
plans to VCTC for review and approval. Any such Work must be carried out pursuant to
work plans approved in writing by VCTC. In addition, SUBLICENSEE shall provide
VCTC and all holders of underground utility facilities located within the Sublicensed
Property with at least 10 calendar days' written notice prior to commencement of any
Work on the Sublicensed Property or the Facility, except in cases of emergency, in
which event SUBLICENSEE shall notify VCTC's representative personally or by phone
prior to commencing any Work. Unless otherwise requested by VCTC, upon completion
of any Work, SUBLICENSEE shall restore the VCTC Property to its condition
immediately preceding the commencement of such Work.
5. Contractors -Approval and Insurance. Any contractors of SUBLICENSEE
performing Work on the Facility or the Sublicensed Property shall first be approved in
writing by VCTC. With respect to such Work, SUBLICENSEE shall, at its sole cost and
expense, obtain and maintain in full force and effect, throughout the term of such Work,
insurance, as required by VCTC, in the amounts and coverages specified on, and
issued by insurance companies as described Section 16 below, and which names
SUBLICENSOR as additional insured. Additionally, SUBLICENSEE shall cause any and
all of its contractors and subcontractors which may (a) be involved with such Work, or
b) may, for any reason, need to enter onto the Sublicensed Property, to obtain and
maintain in full force and effect during the Term of this Agreement, or throughout the
term of such Work (as applicable), insurance, as required by VCTC, in the amounts and
coverages specified on, and issued by insurance companies as described in Section 16
below. VCTC reserves the right, throughout the Term of this Agreement, to review and
change the amount and type of insurance coverage it requir~s in connection with this
Agreement for the Work to be performed on the Sublicensed Property; provided VCTC
provides to SUBLICENSEE prior written notice of such change.
6. Reimbursement. SUBLICENSEE agrees to reimburse VCTC and
SUBLICENSOR for all reasonable costs and expenses incurred by them in connection
with Work on, or maintenance of, the Sublicensed Property or the Facility, including, but
not limited to, costs incurred in furnishing any materials or performing any labor,
reviewing SUBLICENSEE's Work plans and/or inspecting any Work, installing or
removing protection beneath or along VCTC's tracks, furnishing of watchmen, flagmen
and inspectors as VCTC deems necessary and such other items or acts as VCTC in its
sole discretion deems necessary to monitor or aid in compliance with this Agreement.
7. Liens. SUBLICENSEE will fully and promptly pay for all materials joined or
affixed to Facility or the Sublicensed Property, and fully and promptly pay all persons
who perform labor upon said Facility or the Sublicensed Property. SUBLICENSEE shall
not suffer or permit to be filed or enforced against the Sublicensed Property or the
Facility, or any part thereof, any mechanics', materialmen's, contractors', or
A-2 - 5
12853-0062\2315 l 75v22.doc 37
subcontractors' liens or stop notices arising from, or any claim for damage growing out
of, any testing, investigation, maintenance or Work, or out of any other claim or demand
of any kind. SUBLICENSEE shall pay or cause to be paid all such liens, claims or
demands, including sums due with respect to stop notices, together with attorney's fees
incurred by VCTC with respect thereto, within ten (10) business days after notice
thereof and shall indemnify, hold harmless and defend VCTC and SUBLICENSOR from
all obligations and claims made for the above described work, including attorney's fees.
SUBLICENSEE shall furnish evidence of payment upon request of VCTC or
SUBLICENSOR. SUBLICENSEE may contest any lien, claim or demand by furnishing a
statutory lien bond or equivalent with respect to stop notices to VCTC in compliance
with applicable California law. If SUBLICENSEE does not discharge any mechanic's
liens or stop notice for works performed for SUBLICENSEE, VCTC shall have the right
to discharge same (including by paying the claimant), and SUBLICENSEE shall
reimburse the cost of such discharge within ten (10) business days after billing. VCTC
and SUBLICENSOR reserves the right at any time to post and maintain on the
Sublicensed Property such notices as may be necessary to protect against liability for
all such liens and claims. The provisions of this Section shall survive the termination of
this Agreement.
8. Maintenance and Repair. SUBLICENSEE, at SUBLICENSEE's sole expense,
shall maintain the Sublicensed Property and the Facility in a condition satisfactory to
VCTC and in accordance with Exhibit "C" during the Term of this Agreement and shall
be responsible for all clean up and maintenance of the Sublicensed Property and
License Property resulting from its use thereof under this Sublicense. SUBLICENSEE
shall be responsible for any citations issued by any agency having jurisdiction as a
result of SUBLICENSEE's failure to comply with local codes. If any portion of the VCTC
Property, including improvements or fixtures, suffers damage by reason of the access to
or use thereof by SUBLICENSEE, SUBLICENSEE's Parties, including but not limited to
damage arising from any test or investigations conducted upon the Sublicensed
Property, SUBLICENSEE shall, at its own cost and expense, immediately repair all such
damage and restore the Sublicensed Property to as good a condition as before such
cause of damage occurred. Repair of damage shall include, without limitation, regrading
and resurfacing of any holes, ditches, indentations, mounds or other inclines created by
an excavation by SUBLICENSEE or SUBLICENSEE Parties.
9. Landscaping/Protective Fencing. If required by VCTC, SUBLICENSEE, at its
sole cost and expense, shall install barrier fencing and or landscaping to shield the
railroad track area from public access and/or the Facility. VCTC shall have the right to
review and approve fencing and/or landscaping plans prior to installation. All fencing
and/or landscaping work shall be done in accordance with the provisions of Sections 4
and 5 above and will be subject to the maintenance and repair provisions of Section 8
above.
10. Use. The Sublicensed Property and the Facility shall be used only for the
purposes specified in Item 3 of the Basic Sublicense Provisions above and for such
lawful purposes as may be directly incidental thereto. No change shall be made by
A-2 -6
12853-0062\23 I5175v22.doc 38
SUBLICENSEE in the use of the Sublicensed Property or the Facility without VCTC's
prior written approval.
11. Abandonment. Should SUBLICENSEE at any time abandon the use of the
Facility or the Sublicensed Property, or any part thereof, or fail at any time for a
continuous period of ninety (90) days to use the same for the purposes contemplated
herein, then this Agreement shall terminate to the extent of the portion so abandoned or
discontinued, and in addition to any other rights or remedies, VCTC shall immediately
be entitled to exclusive possession and ownership of the portion so abandoned or
discontinued, without the encumbrance of this Agreement. VCTC, at its option, may
remove any improvements remaining on the abandoned property, at SUBLICENSEE's
expense.
12. Breach. Should SUBLICENSEE breach, or fail to keep, observe or perform any
agreement, covenant, term or condition on its part herein contained, then, in addition to
any other available rights and remedies, SUBLICENSOR, at its option may:
a) perform any necessary or appropriate corrective work at
SUBLICENSEE's expense, which SUBLICENSEE agrees to pay to SUBLICENSOR
upon demand, or
b) with or without written notice or demand, immediately terminate this
Agreement and at any time thereafter, recover possession of the Sublicensed Property
or any part thereof, and expel and remove therefrom SUBLICENSEE, or any other
person occupying the Sublicensed Property, by any lawful means, and again repossess
and enjoy the Sublicensed Property and the Facility, without prejudice to any of the
rights and remedies that SUBLICENSOR may have under this Agreement, at law or in
equity by reason of SUBLICENSEE's default or of such termination.
13. Surrender. Upon termination of this Agreement, unless otherwise requested in
writing by VCTC to leave all, or any portion of, the Facility in place prior to the date of
termination, SUBLICENSEE, at its own cost and expense, shall immediately remove the
Facility and restore the Sublicensed Property as nearly as possible to the same state
and condition as existed prior to the construction, reconstruction or installation of said
Facility. Should SUBLICENSEE fail to comply with the requirements of the preceding
sentence, VCTC may at its option (a) perform the same at SUBLICENSEE's expense,
which costs SUBLICENSEE agrees to pay to VCTC on demand, or (b) assume title and
ownership of said Facility. No termination hereof shall release SUBLICENSEE from any
liability or obligation hereunder, whether of indemnity or otherwise, resulting from any
acts, omissions or events happening prior to the date the Facility is removed and the
Sublicensed Property is restored.
14. Indemnification. SUBLICENSEE, on behalf of itself and its successors and
assigns, agrees to indemnify, defend (by counsel satisfactory to SUBLICENSOR and
VCTC), and hold harmless SUBLICENSOR, VCTC, and their subsidiaries and their
respective, members, directors, partners, officers, commissioners, employees, agents,
successors and assigns (individually and collectively, "lndemnitees"), to the maximum
A-2 - 7
l2853-0062\23 l 5 l 75v22.doc 39
extent allowed by law, from and against all loss, liability, claims, demands, suits, liens,
claims of lien, damages (including consequential damages), costs and expenses
including, without limitation, any fines, penalties, judgments, litigation expenses, and
experts' and attorneys' fees), that are incurred by or asserted against lndemnitees
arising out of or connected in any manner with (i) the acts or omissions to act of the
SUBLICENSEE, or its officers, directors, affiliates, SUBLICENSEE Parties or anyone
directly or indirectly employed by or for whose acts SUBLICENSEE is liable
collectively, "Personnel") or invitees of SUBLICENSEE in connection with the
Sublicensed Property or arising from the presence upon or performance of activities by
SUBLICENSEE or its Personnel with respect to the Sublicensed Property, (ii) bodily
injury to or death of any person (including employees of lndemnitees) or damage to or
loss of use of property resulting from such acts or omissions of SUBLICENSEE or its
Personnel, or (iii) nonperformance or breach by SUBLICENSEE or its Personnel of any
term or condition of this Agreement, in each case whether occurring during the Term of
this Agreement or thereafter.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring or comparative) on the part of lndemnitees,
unless caused solely by the negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees may have under the law or under this Agreement. Upon request of
VCTC, SUBLICENSEE shall provide insurance coverage for possible claims or losses
covered by the indemnification and defense provisions of this Agreement.
Claims against the lndemnitees by SUBLICENSEE or its Personnel shall not limit
the SUBLICENSEE's indemnification obligations hereunder in any way, whether or not
such claims against lndemnitees may result in any limitation on the amount or type of
damages, compensation, or benefits payable by or for SUBLICENSEE or its Personnel
under workers' compensation acts, disability benefit acts, or other employee benefit acts
or insurance.
15. Assumption of Risk and Waiver. To the maximum extent allowed by law,
SUBLICENSEE assumes any and all risk of loss, damage, or injury of any kind to any
person or property, including, without limitation, the Facility, the Sublicensed Property
and any other property of, or under the control or custody of, SUBLICENSOR, or any
SUBLICENSEE, which is on or near the Sublicensed Property. SUBLICENSEE's
assumption of risk shall include, without limitation, loss or damage caused by defects in
any structure or improvement, accident, fire or other casualty, or electrical discharge,
noise, or vibration resulting from VCTC's transit operations. The term "VCTC" as used in
this section shall include: (a) any transit or rail-related company validly operating upon
or over VCTC's tracks or other property, and (b) any other persons or companies
employed, retained or engaged by VCTC. SUBLICENSEE, on behalf of itself and its
SUBLICENSEE or its Personnel, as a material part of the consideration for this
Agreement, hereby waives all claims and demands against SUBLICENSOR and VCTC
for any such loss, damage or injury of SUBLICENSEE and its Personnel. In that
connection, SUBLICENSEE waives the benefit of California Civil Code Section
1542, which provides as follows:
A-2 - 8
12853-0062\23 l 5175v22.doc 40
A general release does not extend to claims which the creditor does
not know or suspect to exist in his or her favor at the time of
executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor.
SUBLICENSEE accepts the risk that the facts or the law may later turn out to be
different than SUBLICENSEE understands them to be at this time and acknowledges
that this assumption of risk and waiver will not be affected by such different state of
facts or law. The provisions of this Section shall survive the termination of this
Agreement.
16. Insurance.
A. SUBLICENSEE, at its sole cost and expense, shall procure and maintain
in full force and effect insurance coverage or evidence of self-insurance as required by
VCTC against claims for injuries to persons or damages to property which may arise
from, or in connection with, the use of Sublicensed Property hereunder by the
SUBLICENSEE, or SUBLICENSEE Parties, agents, representatives, employees, or
subcontractors during the entire term of this Agreement. SUBLICENSEE shall provide,
at minimum, the following coverage:
1. Commercial General Liability [CGL], to include Products/Completed
Operations, Independent Contractors', Contractual Liability, and Personal
Injury Liability with a minimum of $2,000,000.00 of coverage per occurrence
and $4,000,000 of coverage in the aggregate for bodily injury, personal injury,
and property damage, with:
1. Removal of the CGL exclusion for pollution liability, or
2. A Pollution Liability policy with minimum limits of
1,000,000.00; and
3. Automobile Liability Insurance with combined single limits of
a minimum of $1,000.000.00 per accident for bodily injury
and property damage; and
4. Workers' Compensation with limits as required by the State
of California; with a waiver of subrogation rights; and
5. Employer's Liability with limits of a minimum of
1,000,000.00 per accident for bodily injury or disease.
B. VCTC, and SUBLICENSOR, and their officers, directors, employees and
agents must be designated as additional insured on the SUBLICENSEE's
Comprehensive General and Automobile Liability Insurance policies. SUBLICENSEE
shall furnish VCTC and SUBLICENSOR with insurance endorsements and certificates,
evidencing the existence, amounts and coverages of the insurance required to be
maintained hereunder.
A-2 -9
12853-0062\2315 I75v22.doc 41
C. The coverage shall be primary and any insurance or self-insurance
maintained by VCTC and SUBLICENSOR shall be excess of the SUBLICENSEE's
insurance and shall not contribute to it.
D. Each insurance policy required by this clause shall be endorsed to state
that coverage shall not be suspended, voided, cancelled or reduced in coverage or in
limits, except only after thirty (30) days prior written notice has been given to VCTC and
SUBLICENSOR. In the event SUBLICENSOR or VCTC learns that SUBLICENSEE's
insurance coverage is terminated and SUBLICENSEE fails to provide adequate
assurances that continuous coverage is being provided, VCTC and/or SUBLICENSOR,
at its sole discretion, may obtain such coverage at SUBLICENSEE's expense.
E. VCTC retains the right to increase the amounts of coverage required by
this Agreement as it determines are reasonably necessary to protect itself against
potential liability caused by entering into this Agreement. VCTC shall give
SUBLICENSEE 60 days' notice of the need for it to increase its coverage. By the end of
the 60 days, SUBLICENSEE shall provide proof of such coverage in the manner set
forth in this section.
17. VCTC'S Right of Access. SUBLICENSEE will permit VCTC and
SUBLICENSOR and their agents, at all reasonable times and at any time in case of
emergency, in such manner as to cause as little disturbance to SUBLICENSEE as
reasonably practicable (a) to enter into and upon the Sublicensed Property to inspect
them, to protect their interest therein, or to post notices of non responsibility, (b) to take
all necessary materials and equipment onto the Sublicensed Property, and perform
necessary work thereon, and (c) to perform environmental testing, monitoring, sampling,
digging, drilling and analysis for Hazardous Materials on, under or about the
Sublicensed Property. VCTC may at any time place on or about the Sublicensed
Property (including the Improvements) any ordinary "for sale" and "for lease" signs.
SUBLICENSEE shall also permit VCTC and its agents, upon request, to enter the
Sublicensed Property or any part thereof, at reasonable times during normal business
hours, to show the Sublicensed Property to prospective tenants, purchasers or
mortgagees.
18. Assignment and Sublicensing. SUBLICENSEE shall not assign all or any
portion of its interest in this Sublicense, whether voluntarily, by operation of law or
otherwise, and shall not sublicense all or any portion of the Sublicensed Property,
including, but not limited to, sharing them, permitting another party to occupy them or
granting concessions or licenses to another party.
19. Tests and Inspection. VCTC and SUBLICENSOR shall have the right at any
time to inspect the Sublicensed Property and the Facility so as to monitor compliance
with the terms of this Agreement. VCTC and SUBLICENSOR shall be permitted to
conduct any tests or assessments, including but not limited to environmental
assessments, of, on or about the Sublicensed Property, as it determines to be
necessary in its sole judgment or useful to evaluate the condition of the Sublicensed
Property, or if VCTC or SUBLICENSOR determines that any installation on, or use or
A-2 -10
l2853-0062\2315 l 75v22.doc 42
condition of the Sublicensed Property may have an adverse effect on adjacent property
whether or not owned by VCTC) or operations thereon. SUBLICENSEE shall
cooperate with SUBLICENSOR, VCTC and their agents in any tests or inspections
deemed necessary by VCTC. SUBLICENSEE shall pay or reimburse VCTC and
appropriate regulatory agencies, as appropriate, for all reasonable costs and expenses
incurred due to the tests, inspections or any necessary corrective work and inspections
thereafter.
20. Hazardous/Toxic Materials Use and Indemnity. SUBLICENSEE shall operate
and maintain the Sublicensed Property in compliance with all applicable federal, state
and local environmental, health and/or safety-related laws, regulations, standards,
decisions of the courts, permits or permit conditions, currently existing or as amended or
adopted in the future which are or become applicable to SUBLICENSEE, or the
Sublicensed Property ("Environmental Laws"). SUBLICENSEE shall not cause or
permit, or allow any of SUBLICENSEE Parties to cause or permit, any Hazardous
Materials to be brought upon, stored, used, generated, treated or disposed of on or
about the brought upon, stored, used, generated, treated or disposed of on the
Sublicensed Property or the adjacent property. As used herein, "Hazardous Materials"
means any chemical, substance or material which is now or becomes in the future
listed, defined or regulated in any manner by any Environmental Law based upon,
directly or indirectly, its properties or effects.
SUBLICENSEE shall indemnify, defend (by counsel acceptable to VCTC and
SUBLICENSOR) and hold harmless the lndemnitees ( as defined in Section 14) from
and against all loss, liability, claim, damage, cost or expense (including without
limitation, any fines, penalties, judgments, litigation expenses, attorneys' fees, and
consulting, engineering, and construction fees and expenses) incurred by lndemnitees
as a result of (a) SUBLICENSEE's breach of any prohibition or provision of this Section
or (b) any release of Hazardous Materials upon or from the Facility or the Sublicensed
Property or adjacent property (i) which occurs due to the use and occupancy of the
Facility or the Sublicensed Property by SUBLICENSEE or SUBLICENSEE Parties, or
ii) which is made worse due to the act or failure to act of SUBLICENSEE or
SUBLICENSEE Parties.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring, or comparative) on the part of lndemnitees,
unless caused solely by the gross negligence or willful misconduct of lndemnitees; shall
survive termination of this Agreement; and is in addition to any other rights or remedies
which lndemnitees may have under the law or under this Agreement.
In addition, in the event of any release on or contamination of the Sublicensed
Property and/or any adjacent property, whether or not owned by VCTC,
SUBLICENSEE, at its sole expense, shall promptly take all actions necessary to clean
up all such affected property (including all affected adjacent property, whether or not
owned by VCTC) and to return the affected property to the condition existing prior to
such release or contamination, to the satisfaction of VCTC and any governmental
authorities having jurisdiction thereover.
A-2 -11
12853-0062\23 15 I 75v22.doc 43
Upon the termination of this Agreement at any time and for any reason,
SUBLICENSEE shall, prior to the effective date of such termination, clean up and
remove all Hazardous Materials in, on, under and/or about the Sublicensed Property
and adjacent property which SUBLICENSEE, or SUBLICENSEE Parties caused or
permitted to be brought upon such property, in accordance with the requirements of all
Environmental Laws and to the satisfaction of VCTC and any governmental authorities
having jurisdiction thereover.
21. Underground Storage Tanks. NEITHER SUBLICENSEE NOR SUBLICENSEE
PARTIES, SHALL INSTALL OR USE ANY UNDERGROUND STORAGE TANKS ON
THE SUBLICENSED PROPERTY.
22. Subordinate Rights. This Agreement is subject and subordinate to the prior
and continuing right and/or obligation of VCTC, SCRRA, Amtrak, Union Pacific Railroad
UPRR) and their successors and assigns, to use the Sublicensed Property in the
exercise of its powers and in the performance of its duties, or for any other purpose,
including but not limited to those as a public transportation body. Accordingly, there is
reserved and retained unto VCTC, its successors, assigns and permittees, the right to
construct, reconstruct, maintain, and use existing and future rail tracks, facilities and
appurtenances and existing and future transportation, communication, pipeline and
other facilities and appurtenances in, upon, over, under, across and along the
Sublicensed Property, and to otherwise use the Sublicensed Property, and in
connection therewith the right of VCTC, its successors and assigns, to grant and convey
to others, rights to and interests in the Sublicensed Property and in the vicinity of the
Facility. This Agreement is subject to all licenses, leases, easements, restrictions,
conditions, covenants, encumbrances, liens, claims and other matters of title ("Title
Exceptions") which may affect the Sublicensed Property now or hereafter, and no
provision of this Agreement shall be construed as a covenant or warranty against the
existence of any such present or future Title Exceptions, whether or not arising out of
the actions of VCTC or SUBLICENSOR, its successors or assigns. Neither
SUBLICENSOR nor VCTC makes any representations or warranties of any kind with
regard to title to the Sublicensed Property.
23. Compliance with Laws. SUBLICENSEE shall comply with all applicable
federal, state and local laws, regulations, rules and orders in its work on, or
maintenance, inspection, testing or use of, the Facility and the Sublicensed Property.
SUBLICENSOR and VCTC may enter the Sublicensed Property to inspect the Facility
at any time, upon provision of reasonable notice of inspection to SUBLICENSEE.
SUBLICENSEE shall obtain all required permits or licenses required by any
governmental authority for its use of the Sublicensed Property and the Facility, at its
sole cost and expense.
24. Condemnation. In the event all or any portion of the Sublicensed Property shall
be taken or condemned for public use (including conveyance by deed in lieu of or in
settlement of condemnation proceedings), SUBLICENSEE shall receive compensation
if any) from the Condemner only for the taking and damage to the Facility. Any other
compensation or damages arising out of such taking or condemnation awarded to
A-2 -12
l 2853-0062\23 l 5175v22.doc 44
SUBLICENSEE are hereby assigned by SUBLICENSEE to VCTC. SUBLICENSEE shall
have no rights under California law or federal law to the receipt of any damages arising
out of any use or proposed use of the Sublicensed Property by VCTC or SCRRA,
Amtrak, UPRR, or their respective agents, officers, contractors or employees and in
entering into this Agreement expressly waives any such rights.
25. Markers. Project markers in form and size satisfactory to VCTC, identifying the
Facility and its owners, will be installed and constantly maintained by and at the
expense of SUBLICENSEE at such locations as VCTC shall designate. Such markers
shall be relocated or removed upon request of VCTC without expense to VCTC.
Absence of markers in or about the Sublicensed Property does not constitute a warranty
by VCTC or SUBLICENSOR of the absence of subsurface installations.
26. General Provisions.
26.1 Notices. All notices and demands which either party is required to or
desires to give to the other shall be made in writing by personal mail, by express courier
service, or by certified mail, return receipt requested, postage prepaid, and addressed
to such party at its address set forth in the Basic License Provisions. Either party may
change its address for the receipt of notice by giving written notice thereof to the other
party in the manner herein provided. Notices shall be effective only upon receipt by the
party to whom notice or demand is given.
26.2 Non-Exclusive License. The license granted hereunder is not exclusive
and VCTC has specifically reserved the right to grant other licenses within the
Sublicensed Property.
26.3 Governing Law. This Agreement shall be governed by the laws of the
State of California.
26.4 Severability. If any term, covenant, condition or provision of this
Agreement, or the application thereof to any person or circumstance, shall to any extent
be held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, covenants, conditions, or provisions of this Agreement, or the
application thereof to any person or circumstance, shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated thereby.
26.5 Interest on Past-Due Obligations. Except as expressly herein provided,
any amount due to SUBLICENSOR which is not paid when due shall bear interest, from
the date due, at the maximum rate then allowable by law. Such interest will be due to
SUBLICENSOR as it accrues. Payment of such interest shall not excuse or cure any
default by SUBLICENSEE under this Agreement. Interest shall not be payable on late
charges incurred by SUBLICENSEE.
26.6 Survival of Obligations. All obligations of SUBLICENSEE hereunder not
fully performed as of the expiration or earlier termination of the Term of this Agreement
shall survive the expiration or earlier termination of this Agreement, including without
A-2 -13
12853-0062\23 I5175v22.doc 45
limitation, all payment obligations with respect to License Fees and all obligations
concerning the condition of the Sublicensed Property and the Facility.
26.7 Waiver of Covenants or Conditions. The waiver by one party of the
performance of any covenant or condition under this Agreement shall not invalidate this
Agreement nor shall it be considered a waiver by it of any other covenant or condition
under this Agreement.
26.8 Effective Date/Nonbinding Offer. Submission of this Sublicense for
examination or signature by SUBLICENSEE does not constitute an offer or option for
license, and it is not effective as a license or otherwise until executed and delivered by
both SUBLICENSOR and SUBLICENSEE. Each individual executing this Sublicense
on behalf of SUBLICENSOR or SUBLICENSEE represents and warrants to the other
party that he or she is authorized to do so.
26.9 Assignment. This Agreement and the license granted hereunder are
personal to the SUBLICENSEE. SUBLICENSEE shall not assign or transfer (whether
voluntarily or involuntarily) this Agreement in whole or in part, or permit any other
person or entity to use the rights or privileges granted hereunder, without the prior
written consent of VCTC and SUBLICENSOR, which may be withheld in
SUBLICENSOR's and VCTC's sole and absolute discretion, and any attempted act in
violation of the foregoing shall be void and without effect and grant SUBLICENSOR the
right to immediately terminate this Agreement.
26.10 Attorneys' Fees. In any judicial or arbitration proceeding involving
performance under this Agreement, or default or breach thereof, the prevailing party
shall be entitled to its reasonable attorneys' fees and costs.
26.11 Nondiscrimination. SUBLICENSEE certifies and agrees that all persons
employed and any contractors retained, by either SUBLICENSEE or SUBLICENSEE's
affiliates, subsidiaries, or holding companies, with respect to the Sublicensed Property,
are and shall be treated equally without regard to or because of race, religion, ancestry,
national origin, disability or sex, and in compliance with all federal and state laws
prohibiting discrimination in employment, including but not limited to the Civil Rights Act
of 1964; the Unruh Civil Rights Act; the Cartwright Act; and the California Fair
Employment Practices Act.
26.12 Further Acts. At SUBLICENSOR 's sole discretion, but at the sole
expense of SUBLICENSEE, and without a SUBLICENSEE claim for reimbursement,
SUBLICENSEE agrees to perform any further acts and to execute and deliver in
recordable form any documents which may be reasonably necessary to carry out the
provisions of this Agreement, including the relocation of the Facility and the license
granted hereunder.
26.13 Termination for Public Project. SUBLICENSEE hereby expressly
recognizes and agrees that the Sublicensed Property is located on VCTC property that
may be developed for public projects and programs which may be implemented by
A-2 -14
12853-0062123 l 5175v22.doc 46
VCTC or other public agencies, such as, but not limited to: rail and bus transitways,
bikeways, walkways, beautification projects and other public uses (collectively
Project"), and that SUBLICENSEE's use of the Sublicensed Property under this
License is an interim use. SUBLICENSEE expressly acknowledges and agrees that: (1)
VCTC may terminate the License for any public project; (2) SUBLICENSEE will NOT
oppose any public Project when planned or implemented on or adjacent to the
Sublicensed Property, and (3) in the event VCTC terminates this License and requires
SUBLICENSEE and/or any SUBLICENSEE to vacate the Sublicensed Property for any
public Project, SUBLICENSEE (a) shall not be entitled to receive any relocation
assistance, moving expenses, goodwill or other payments under the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970, as amended, 42 U.S.C.
sections 4601 et seq. and/or the California Relocation Assistance Law, as amended,
California Government Code sections 7260 et seq.; and (b) shall not be entitled to any
compensation under the eminent domain law, as a result of such termination and
vacation.
26.14 Acknowledgement of No Right to Claim Relocation Benefits Against
VCTC. SUBLICENSEE hereby acknowledges that if VCTC asks SUBLICENSEE to
vacate the property, then SUBLICENSEE is not entitled to any relocation benefits under
this agreement or by virtue of state or federal law. Further, SUBLICENSEE agrees it is
not entitled to loss of good will or moving expenses from VCTC, SCRRA, Amtrak or
BNSF.
26.15 Time of Essence. Time is of the essence in the performance of this
Agreement.
26.16 No Recording. SUBLICENSEE shall not record or permit to be recorded
in the official records of the county where the Sublicensed Property is located this
Agreement, any memorandum of this Agreement or any other document giving notice of
the existence of this Agreement or the license granted hereunder.
26.17 Entire Agreement. This Agreement and the Exhibits hereto constitute the
entire agreement between the Parties with respect to the subject matter hereof and
supersede all prior verbal or written agreements and understandings between the
Parties with respect to the items set forth herein. All amendments, changes, revisions,
and discharges of this Agreement in whole or in part, and from time to time, shall be
binding upon the parties despite any lack of legal consideration, so long as the same
shall be in writing and executed by the parties hereto.
26.18 Captions. The Captions included in this Agreement are for convenience
only and in no way define, limit, or otherwise describe the scope or intent of this
Agreement or any provisions hereof, or in any way affect the interpretation of this
Agreement.
26.19 Additional Provisions. Those additional provisions set forth in Exhibit "B",
if any, are hereby incorporated by this reference as if fully set forth herein.
A-2 -15
l 2853-0062\2315 l 75v22.doc 47
IN WITNESS WH EREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives as of the dat 1rst written above .
SUBLICENSOR:
CITY OF MOORPARK
Attest:
KySp~:?tcw.
Approved as to Form :
gr;_;,
Kevin G . Ennis
City Attorney, City of Moorpark
CONSENTED TO BY:
VENTURA COUNTY TRANSPORTATION
COMMISSION
By :
Darren Kettle
Executive Director, VCTC
Approved As To Form:
By :
Steve Mattas
General Counsel , VCTC
A-2 -16
12853-0062\23 15 I75v22 .doc
48
EXHIBIT "A"
TO SUBLICENSE AGREEMENT
Description of Sublicensed Property
Lct:iAL DESC RIPTION
Being a st rip of I1:nc, 20.DD fee t wide, ir the oty of Mcorparl<, Cou nty of Ventura, State of Cll lfornla,
and being a ,p ottlon of the land, 40 .00 l t;;ii!l wide:, des cribed in t he Grant Pee d r=rded Sep tember 27,
1931, as In,trumentr~o. 91-143117 of Offir,ial Rt>m rds o" Ventura County, the norther ly lin e of sa id st riJ
of land describ ed as fo lows:
Beg in ni ng at a point in the nort1e y li ne of sa id Grant Oee:I, said poin t bea rs S-oJt h 89"30'35" East
169.65 Feet fro'TI t he lnte-s ectlon of sa id no,Lh:?1 ly li ne v,lth tile ea sterly line of Moorpark Aven ue, 50.00
foo t wi de, as shown on t he ma p entitled ''Map l\o. I :>f Tra<:t O of M:::orpa rlc Subd ivision" an d reco rded
in Book 8, Fage 13 of Ml sm lla n1?0 us =l.e:o;ds (Maps) lri ttie office of the Cou nt y Re co rd er of v ~ntura
Cou r ty, Sllld po i m bei ng the :;outh wcstcrty ccmer of Pa rce l :;i of Proposed Parm l Ma p No. 2017-1 and
tt-P. True Point of B£~i nning at th is descrl ptlo n; t l'lenc.e cont i nt1 ing along t he: ll Ort;herty li ne o" sa i d G-ant
Deed, S0Ul11 B9°~·0'35" t:ast 937 .16 feet tu the! ::.ouU·1easter l~' comer of Pa rcE;I J of '"aid Proposed Pa rce l
Map No . 2.0P--1
Ci;mta inlng 18,743 s~uare fo.et. mor~ or lc::x.
t.,,._ 3,'b(IJ'
Date
A-2 -17
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EXHIBIT "C"
TO SUBLICENSE AGREEMENT
This Sublicense is subject to the following additional terms and conditions:
1. The SUBLICENSEE agrees to execute and deliver to SCRRA ( with a copy to
Sublicensor), prior to commencing any work within the rail right-of-way, SCRRA
Temporary Right-of-Entry agreement (Form No. 6), and deliver and secure
approval of the insurance required by the two exhibits attached to SCRRA Form
No.6. If the SUBLICENSEE retains a contractor to perform any of work within the
rail right-of-way, then the SUBLICENSEE shall incorporate in its contract
documents SCRRA Form No. 6 and Rules and Requirements for Construction on
Railway Property (SCRRA Form No. 37). Mr. Christos Sourmelis with SCRRA's
Right-of-Way Encroachments Office can be reached at (909) 394-3418. These
forms can be accessed through SCRRA's website www.metrolinktrains.com,
About Us," "Engineering and Construction," and "Manuals").
2. SUBLICENSEE's contractor, at its sole cost and expense, shall obtain and
maintain, in full force and effect, insurance as required by SCRRA during the
entire construction period. The Contractor shall furnish copies of the insurance
certificates to all affected operating railroads.
3. Third Party Safety training is required for all work near or within the railroad right-
of-way. SUBLICENSEE's contractor shall contact SCRRA at 1-877-452-0205 to
schedule safety training. The contractor will need a valid SCRRA project number,
located in the upper right hand comer of the Right-of-Entry. No work may
commence on the railroad right of way until this training has been completed.
4. The SUBLICENSEE agrees to comply and to ensure that its contractor complies
with instructions of SCRRA's Employee-In-Charge (EiC) and representatives, in
relation to the proper manner of protection of the tracks and the traffic moving
thereon, pole lines, signals and other property of SCRRA or its member agency
tenants or SUBLICENSEEs at or in the vicinity of the work, and shall perform the
work at such times as not to endanger or interfere with safe and timely operation
of SCRRA's track and other facilities.
5. SUBLICENSEE shall prepare and submit traffic control plan for SCRRA approval
for projects that will affect vehicular traffic at an existing highway-rail grade
crossing.
6. SUBLICENSEE shall install and maintain an SCRRA approved safety fence or
wall at the limit of the licensed area to prevent any trespassing into the active rail
corridor.
3050103.1
A-2 -19
l 2853-0062\23 l 5175v22.doc 51
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12853-0062 \23 l 5 I75v22 .doc
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EXHIBIT "E"
ADDRESSES OF PARTIES)
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
The Daly Group, Inc.
31255 Cedar Valley Dr., Ste. 323
Westlake Village, California 91362
Attn: Vince Daly
With copy (which shall not constitute notice) to:
Jonathan Block, Esq.
c/o The Daly Group
31255 Cedar Valley Dr., Ste. 323
Westlake Village, California 91362
With copy (which shall not constitute notice) to:
Mullen & Henzell, L.L.P.
112 East Victoria Street
Santa Barbara, California 93101
Attn: Graham M. Lyons, Esq.
l 2853-0062\2315 l 75v22.doc
E -1 55
EXHIBIT F
PROJECT FEE S
Develop er will be required to pay a ll appli cabl e fees pert a inin g , but no t limited to co nditi o n
co mpli ance , environmenta l MMRP co mpli ance, pl an checks , in spec tio ns , publi c wo rk s permits ,
and building permits.
Community Development Department Fee s/Depo s it s (Resolution No. 2017-3608):
Condition Co mpli anc e de pos it
Deve lo pment Agree ment Annua l Rev iew de po s it
Zonin g C learance fees
Advanc e Pl annin g fees
C on struction and Demolition Materi a l Managem ent Pl an fees
No te: A 15% administrati ve fee is added to any wo rk that is co mpl eted by co nsultants to th e
C it y.)
Lo t Lin e Adjustment/Merge r, S ign Permit/Pro gram , Temporary Banners , and Use Permits fo r
future co mmerc ia l te nants wo uld be und er separate a ppli cati on .
Public Works Fees/Depo s it s (Resolution No. 2008-2670):
E ncro achment Permit/In s pection fees
Excavation Permit/In specti o n fees
Tran sportation Permit fees
Ge ology and G e otechni cal Re port Rev iew d e pos it
Pl an C hec k fees
n spec tion fees
Geo lo gy an d So il Engineerin g Rev iew fees
No te : A 30% admini st rati ve fee is added to a ny wo rk that is co mpl eted by co nsultants to th e
C it y.)
Building and S afety Fees /D e po s it s (Resolution No. 2010-297 1):
Building permit fees
Pl an Rev iew fees
Energy Co nservation fees
Handi capp ed Access fees
G ree n Building Mandato ry Measures fees
G ree n Building T ier 1 and 2 fees
Stro ng Motio n fees
Demo liti on Permit fees
Elec tri cal Permi t fees
Mechani cal Perm it fees
Plumbing Permit fees
12853 -0062\23 15 I75v22.doc
F -1 56
ORDINANCE NO. 509
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING THE SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN
THE CITY OF MOORPARK AND ESSEX MOORPARK
OWNER, L.P., AND AN AMENDED AND RESTATED
AFFORDABLE HOUSING AGREEMENT, AND MAKING A
DETERMINATION OF EXEMPTION PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT IN
CONNECTION THEREWITH
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1 , Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on July 18, 2007, the City Council adopted Resolution No. 2007-2611,
adopting a Mitigated Negative Declaration, and approving General Plan Amendment No.
2004-05 for a change of land use designation from Specific Plan 9 (SP-9) — School
Overlay to Very High Density Residential (VH); and
WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public
hearing and adopted Resolution No. 2017-3582 approving Residential Planned
Development Permit No. 2012-02 for the construction of a 200-unit apartment complex
and associated site improvements on approximately 11.66 acres located at 150 Casey
Road, and adopted a Mitigated Negative Declaration from a previous project, Residential
Planned Development Permit No. 2012-02; and
WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443,
approving Development Agreement (DA) No. 2012-03 by and between the City of
Moorpark and Essex Moorpark Owner, L.P. in association with Residential Planned
Development Permit No. 2012-02; and
WHEREAS, on June 7, 2021, an application was filed to amend the terms of the
Development Agreement between the City of the Moorpark and Essex Moorpark Owner,
L.P.; and
WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490
approving the First Amendment to Development Agreement No. 2012-03; and
WHEREAS, on September 19, 2022, an application was filed to amend the terms
of the Development Agreement between the City of the Moorpark and Essex Moorpark
Owner, L.P.; and
I
ATTACHMENT 2
57
Ordinance No. 509
Page 2
WHEREAS, at a duly noticed public hearing on October 19, 2022, the City Council
considered the Second Amendment to the DA, including an Amended and Restated
Affordable Housing Agreement (ARAHA) and public testimony related thereto; and
WHEREAS, the City Council has considered all points of public testimony relevant
to the Second Amendment to the Development Agreement and has given careful
consideration to the content of the Second Amendment to the DA, and has reached a
decision on the matter; and
WHEREAS, the Community Development Director has determined that this
project, as amended, is consistent with the environmental determination that was
previously-approved for Residential Planned Development Permit No. 2012-02.
Therefore, no further environmental documentation is required.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES
ORDAIN AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTATION: The City Council concurs
with the Community Development Director that the First Amendment to the Development
Agreement is consistent with the Mitigated Negative Declaration adopted for Residential
Planned Development Permit No. 2012-02.
SECTION 2. The City Council of the City of Moorpark does hereby find as follows:
A. The provisions of the Second Amendment to the Development Agreement
are consistent with the General Plan in that it will help achieve the goals of
the Land Use Element and Housing Element and is consistent with the
goals and policies of all other elements.
B. The provisions of the Second Amendment to the Development Agreement
and the assurances that said agreement places upon the project are
consistent with the provisions of Chapter 15.40 of the Moorpark Municipal
Code because the Development Agreement, First Amendment, and Second
Amendment contain the elements required by Section 15.40.030 and shall
be processed through a duly-noticed public hearing process as required by
law.
SECTION 3. The City Council hereby adopts the Second Amendment to the
Development Agreement attached hereto and incorporated herein (Exhibit A) between
the City of Moorpark, a municipal corporation, and Essex Moorpark Owner, L.P. and the
City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be
recorded with the County Recorder no later than ten (10) days after the City enters into
the development agreement pursuant to the requirements of Government Code Section
65868.5.
58
Ordinance No. 509
Page 3
SECTION 4. If any section, subsection, sentence, clause, phrase, part or portion
of this ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this ordinance. The City Council declares that it would have adopted this ordinance
and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 5. This ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall make
a written record of the passage and adoption thereof in the minutes of the proceedings of
the City Council at which the same is passed and adopted; and shall publish notice of
adoption in the manner required by law.
PASSED, AND ADOPTED this 2nd day of November, 2022.
J nice S. Parvin, Mayor„-rut
cq
ATTEST: N•to
Ccr 1441
K Spa ler, City
441011111 111111;
Y p Y 0
0.
Exhibit A: Second Amendment to Development Agreement with attachments
u Y
59
Ordinance No. 509 ATTACHMENT
Page 4
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to §§ 6103, 27383 and 27388.1
of the California Government Code
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
ESSEX MOORPARK OWNER, L.P.
12853-009212729176v7.doc
60
Ordinance No. 509
Page 5
SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment")
is dated as of 2022, and is entered into by and between the CITY OF
MOORPARK, a municipal corporation ("City"), and ESSEX MOORPARK OWNER, L.P.,
a California limited partnership ("Developer").
RECITALS
WHEREAS, the City and Developer entered into that certain Development
Agreement dated April 17, 2017, which was recorded on April 17, 2017 as Document No.
20170417-00050720-0 in the Official Records of Ventura County, California, and
amended it by a First Amendment of Development Agreement ("First Amendment") dated
August 2, 2022 which was recorded on August 4, 2022 as Document No. 2022-
000082017 in such Official Records (as amended, the "DA");
WHEREAS, Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to hereinafter as the
Property"); and
WHEREAS, City and Developer desire to amend the DA to modify certain portions
of the Amended and Restated Affordable Housing Agreement that was attached as
Exhibit D to the First Amendment of Development Agreement, extend the date for
satisfying certain conditions as set forth herein and make certain corrections to the First
Amendment and its exhibits.
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendments.
a. Section 2 of the First Amendment is hereby amended to change the
cross reference of "Section 16" that is contained 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:
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-
12853-009212729176v7.doc
61
Ordinance No. 509
Page 6
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-
62
Ordinance No. 509
Page 7
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: CITY:
ESSEX MOORPARK OWNER, L.P. CITY OF MOORPARK,
a California limited partnership a municipal corporation
By: Essex Moorpark GP, L.P. By:
a California limited partnership Janice S. Parvin, Mayor
Its: General Partner
By: Essex Management Corporation ATTEST:
a California corporation
Its: General Partner
Ky Spangler, City Clerk
By:
Name: APPROVED AS TO FORM:
Title:
By:
Kevin G. Ennis, City Attorney
3-
63
Ordinance No. 509
Page 8
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)
4-
64
Ordinance No. 509
Page 9
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)
5-
65
Ordinance No. 509
Page 10
EXHIBIT "A"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
Replaces Exhibit A to First Amendment)
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT"T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27° 20'34" WEST 36. 75 FEET;
A-1
66
Ordinance No. 509
Page 11
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. 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;
A-2
67
Ordinance No. 509
Page 12
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020- 275
A-3
68
Ordinance No. 509
Page 13
EXHIBIT "B"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT"
Exhibit D to First Amendment)
Attached.)
B-1
69
Ordinance No. 509
Page 14
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
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AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this
Agreement") is to be effective as of 2022, regardless of
the date of actual execution hereof, and is entered into by and between the CITY OF
MOORPARK, a municipal corporation ("City"), and Moorpark Casey Road LP, a California
limited partnership ("Owner"), and shall upon the recordation hereof, supersede and
replace that certain Affordable Housing Agreement between the City and Essex
Moorpark Owner, L.P. ("Essex") dated April 17, 2017 which was recorded on
April 17, 2017 as Instrument Number 20170417-00050721-0 1/67 in the Official
Records of Ventura County, California and was assigned to Owner pursuant to that
certain Assignment and Assumption Agreement dated 2022
Assignment Agreement").
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417- 00050720-0 in the Official Records
of the County of Ventura on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated August 2, 2022 recorded on August 4,
2022, as Instrument Number 2022000082017 1/96 pages in the Official Records of
Ventura County , California, and was assigned to the Owner pursuant to the Assignment
Agreement (the "Development Agreement") pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager's units) on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPD"), and Zone Change No. 2004-04
ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPD and Mitigation Monitoring Program, as amended, are collectively referred to as the
Project Approvals".
C. The RPD requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
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apartment units (Le., 198 of the 200 units) in the Project will be restricted by a federal tax
credit regulatory agreement; such units being described on Exhibit No. 2 attached hereto
by income level and bedroom count. Two units will be manager's units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
Affordable Rent" shall mean the rent described in Section 2.9, subject to Section
2.10.
Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
Agreement" shall mean this Revised Amended and Restated Affordable Housing
Agreement.
City" shall mean the City of Moorpark, California, a municipal corporation.
County' shall mean Ventura County.
County Median Income" shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by the California Tax Credit
Allocation Committee (CTCAC), or if CTCAC discontinues such publication, then such
reasonable replacement publication as may be selected by City in good faith.
Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
Development Agreement" shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on April 17, 2017, which has been amended by a First Amendment to
Development Agreement dated August 2, 2022, and recorded as Instrument No.
2022000082017 Pages 1/96 in the Official Records of the County of Ventura.
Extremely Low Income" shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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Extremely Low Income Household" or "Extremely Low Income Tenant" means
individuals or households qualified on the basis of a "certification of tenant eligibility" as
certified by such individual or household, who have a gross income which does not
exceed Extremely Low Income, adjusted for household size.
Extremely Low Income Units" means Units rented to Extremely Low Income
Households.
HCD" shall mean the Department of Housing and Community Development
HCD) of the State of California.
Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined below).
Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit.
Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
Low Income Units" means Units rented to Low Income Households.
Owner" shall mean Moorpark Casey Road LP and any permitted assignee of its
rights, powers and responsibilities, or any successor in interest to any portion of or interest
in the Project or Property.
Project" is the residential development described in RPD 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functionally related and subordinate
facilities, and all improvements required by the Project Approvals.
Project Approvals" is defined in Recital B above.
Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1 .
Stabilization" shall mean the time at which the Project achieves ninety percent
90%) occupancy for ninety (90) consecutive days.
Term" shall mean from the date of recordation of this Agreement until the later of:
i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
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Units" shall mean residential dwelling units.
Utility Allowance" shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, "Affordable
Housing Financing") to finance the Project, and, although not
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enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager's units)for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the "Compliance Period and
Extend Use Period") and applicable to the tax exempt bonds (the
Qualified Project Period").
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to
be recorded in the Office of the County Recorder of Ventura County, California
concurrently with the closing of the Project Financing, and Owner shall ensure that this
Agreement shall be senior in priority to any lien, encumbrance or other matter of record
except for property taxes and assessments not yet due and existing easements
necessary for the operation of the Project or as otherwise expressly approved in writing
by City. The Owner shall pay all fees and charges in connection with any such
recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Affordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or 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
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such Rules to the City at least forty-five (45) days prior to their proposed effective date
and all of such amendments, modifications and changes shall be subject to the City's
prior written consent, which will not be withheld, conditioned or delayed. If City does not
consent, City shall specify the reasons in writing so that Owner can revise the
amendment(s), modification(s) or change(s) and re-submit them for City approval, which
will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as amended,
remain in effect (with a copy of the Rules and any amendments). If applicable, this
Agreement shall be consistent with any Extended Use Agreement entered into between
Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. All of the Affordable Units shall be and remain owned by the
Owner for the term of this Agreement. No Affordable Unit may be sold separately.
2.7 Affordable Units Generally.
2.7.1 Accessible Compliant Units. Four (4) Affordable Units shall be
compliant with all laws regarding disabled persons (including, without limitation, the
Americans with Disabilities Act) and shall be reserved for and occupied by persons
eligible for such accommodations. Owner shall maintain a waiting list for the affordable
accessible-compliant units, shall promptly deliver a copy thereof to City and shall
thereafter deliver a copy of the revised list to City 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.
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2.7.2 [Intentionally Deleted!.
2. 7.3 Preference Policies. To the extent permitted by applicable state and
federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next eligible
households to fill the vacancies allowing for priority for City of Moorpark residents to the
extent permitted by applicable state and federal law. Details of this process shall be
submitted in writing to the City for review and approval prior to the issuance of the first
building permit for this project. Additionally, Owner shall submit to City an annual report,
no later than January 30 of each calendar year for the pervious calendar year, describing
the vacancies filled from households on the list, total vacancies filled and the number of
households on the list.
2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will
advise City on a quarterly basis in writing of the number of Affordable Units in the entire
Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a
certificate in the form specified by the City, which is attached hereto as Exhibit No. 3,
which shall include a statement as to whether or not the tenant was a City of Moorpark
resident who on the waiting list and was given priority. Any reporting schedule less
frequent than quarterly must be expressly approved in writing by the City Manager.
2.7.5 Unit Classification. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely
Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy
by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an
Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other
than for a temporary period (not to exceed 60 days), at which time the classification of the
Unit shall be redetermined (provided that upon such reclassification, Owner must remain
in compliance with this Agreement). Owner shall use commercially reasonable efforts to
prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain
and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3
attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner
shall make a good faith effort to verify that the income declared by an applicant in an
income certification is accurate by reviewing any one or more of the following documents,
which shall be provided by the applicant:
a) A pay stub for the most recent pay period;
b) An income tax return for the most recent tax year;
c) An income verification form from the applicant's current employer;
d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
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e) If the applicant is unemployed and has no tax return, another form of
independent verification is needed.
In addition to the above-referenced income certification and subject to fair housing
laws and the rules and regulations of the California Tax Credit Allocation Committee,
eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant
units shall submit a letter from a physician or other document acceptable to the City and
Owner which confirms the accessibility needs of the applicant.
2.7.6 Lease Provisions. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, the Owner shall include provisions in all
signed leases or rental agreements for all Affordable Units which authorize the Owner to
immediately terminate the tenancy of any tenant occupying an Affordable Unit where one
or more of such tenants have misrepresented any fact material to the qualification of such
an individual or household as an Extremely Low or Very Low or Low Income Tenant
and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably
enforce such termination rights (i.e., Owner shall exercise them and not waive them).
Each lease or rental agreement for an Affordable Unit shall also provide that the tenants
of such Affordable Unit shall be subject to annual certification or recertification of income,
as required by the City, and shall be subject to rental increases in accordance with Section
2.11 of this Agreement.
2.7.7 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.7. 8 Administration by City; Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner in writing
of the name and phone number of such staff person and any replacements. On or before
the first day of June of each year during the Term of this Agreement, commencing after
the first residential occupancy of the Project, Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the
larger of (a) or (b) below:
a) The percentage increase in the Consumer Price Index during
the prior year, which shall be determined by using the Consumer Price Index by the U. S.
Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for
the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long
Beach-Anaheim index). The calculation shall be made by copying such CPI for the month
of October to the CPI for the previous October.
b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4).
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In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to achieve
substantially the same result.
2. 7.9 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld, conditioned, or delayed.
If the lease or rental agreement provisions specified in this Section are not approved or
disapproved within thirty (30)days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of marketing,
Owner shall prepare and submit to the City for reasonable approval a marketing and
outreach program which shall contain, among other things, the following: how a potential
tenant would apply to rent a Unit in the Project, including where to apply, applicable
income limits and rent levels; support documentation needed such as pay stubs, tax
returns, or confirmation of disability, if applicable, a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in newspapers of general
circulation, including at least one Spanish-language newspaper and mailing notices of
vacancies to or contacting by telephone potential tenants on the waiting list maintained
by Owner. Notices shall also be given to organizations in Ventura County which provide
referrals or other services to persons with disabilities.
2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy
including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2
every five (5) years) per day until the Affordable Unit is placed back in service except that
such fee shall not be payable for so long as Owner is diligently attempting to repair or re-
build the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2. 9.1 Monthly rent charged to Extremely Low Income households shall be
no greater than thirty percent (30%) of thirty percent (30%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
2. 9.3 Monthly rent charged to Low Income households shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance. "Family size appropriate to
the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of the California
Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom
unit and 4 persons for a 3 bedroom unit.
2. 9.4 Utility Allowances will be adjusted annually using the most current
Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667) based
on Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas — Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or future
prudent refinancing of this project, utilizes definitions, sources of information, etc., other
than those which have been herein defined and utilized in calculating Affordable Rent,
then the procedure or input which produces the lowest affordable rent, will prevail as to
the applicable Affordable Unit restricted by this Agreement.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant's initial
rental date. This recertification shall be submitted in writing to the City within thirty (30)
days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County 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.
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2. 12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Extremely Low Income Units and Very Low Income Units, the following
shall apply:
2.12.1 If, upon income recertification, the Owner determines that the
household income of an Extremely Low Income Tenant has increased above the
maximum allowable household income level of an Extremely Low Income Tenant, but
remains equal to or below that of a Very Low Income household, then, except as provided
below in this Section 2.12, the Owner shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of the County Median Income for the size household
appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to
the occupants thereof. In that event, the next available unit that was previously a Very
Low Income Unit must be rented to (or held vacant and available for immediate occupancy
by) an Extremely Low Income household.
2.12.2 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income level of a Very Low Income Tenant, but remains equal to or
below that of a Low Income household, then, except as provided below in this 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.
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Additionally, Owner shall notify City in writing of any re-syndication or
extension of tax credit financing and any defeasance or refinancing of bond financing as
soon as they become reasonably likely.
2. 13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner hereby agrees that specific enforcement of Owner's
agreements to comply with the allowable rent and occupancy restrictions of this
Agreement is one of the reasons for the City's issuing the Project Approvals and entering
into the Amendment to Development Agreement.
2.13.2 Owner further agrees that, in the event of any breach of such
requirements, potential monetary damages to City, as well as prospective Extremely Low
and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and
quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner agrees to the
imposition of the remedy of specific performance against it in the case of any event of
default by Owner in complying with the allowable rent, occupancy restrictions or any other
provision of this Agreement. Nothing herein shall impair City's rights to liquidated
damages under Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2. 15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner 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.
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2.15.4 Owner shall also deliver to City from time to time any other
information about the Affordable Units and the rental thereof as may be reasonably
requested in writing by City within ten (10) days after any such written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or a single
third-party management agent with demonstrated ability to operate, and experience in
operating, residential housing including restricted 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.
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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
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who are properly identified as agents of the City, upon reasonable written notice and
subject to reasonable security and safety procedures and rights of tenants in possession,
on-site inspections and observation of such records of Owner relating to the Project and
the Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. The Owner shall conduct an
ongoing maintenance program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment as
well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and cleaned
regularly and kept free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable City ordinances. The
trash areas will be swept regularly and scrubbed with disinfectant when necessary.
Extermination services will be contracted with to provide pest control consistent with high
quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f.Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical inspection,
or as occupancy changes, or as the Owner or the management agent may otherwise
deem necessary.
g. Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the work
has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect for
the Term.
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ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with and observe the
conditions of Project approval, conditions, terms, or covenants of the Development
Agreement or this Agreement, if such failure remains uncured thirty (30)days after written
notice of such failure from the City in the manner provided herein or, with respect to a
default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within ninety
90) days after the first notice of default is given or such longer period as may be agreed
upon by both parties in writing. If a different period or notice requirement is specified
under any other section of this Agreement, then the specific provision shall control.
6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen
15) business days after written notice of such default by City.
6.1.3 Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate, or report submitted to the City by Owner
proves to have been incorrect in any material respect when made, if such failure remains
uncured thirty (30) days after written notice of such failure from City to Owner in the
manner provided herein or, with respect to a default that cannot be cured within thirty (30)
days, if the Owner fails to commence such cure within such thirty (30) day period or
thereafter fail to diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's relief law or statute of
the United States or of any state or other jurisdiction which is not dismissed within sixty
60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the
benefit of creditors of the Owner in bankruptcy or insolvency or for any of its properties
which (or who) is not discharged within sixty (60) days after its appointment; or (d)
directing the winding up or liquidation of the Owner, providing, however, that any such
decree or order described in any of the foregoing subsections shall have continued
unstayed or undischarged for a period of ninety (90) days.
6.1.5 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
of its property, unless the property so assigned, sequestered, attached, or executed upon
shall have been returned or released within ninety (90) days after such event (unless a
lesser time period is permitted for cure hereunder) or prior to sale pursuant to such
sequestration, attachment, or execution. If the Owner is diligently working to obtain a
return or release of the property and the City's interest hereunder is not imminently
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threatened in the City's reasonable business judgment, then the City shall not declare a
default under this subsection.
6.1.6 The Owner shall have voluntarily suspended its business for a period
of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed
the obligations of Owner in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or encumbrance
on the Property (other than the Development Agreement) and all liens and encumbrances
shall be subordinate and subject to this Agreement, regardless of actual date of
recordation. The City shall consider in good faith, reasonable modifications of this
Agreement typically required by secured lenders and commonly known as "mortgagee
protection" provisions; however, in no event shall any such modification shorten the term
of this Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests in the
Project or the Property, or any part thereof or interest therein (except the lien of any
mortgage, deed of trust or other recorded instrument securing any construction or
permanent financing for the Project, which shall, in any event, be junior and subordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty-five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall
deposit with City a bond or other security reasonably satisfactory to City in such amounts
as City shall reasonably require, but no more than the amount required to release the lien
under California law and provided further that Owner shall thereafter diligently proceed to
cause such lien, encumbrance or charge to be removed and discharged, and shall, in any
event, cause such lien, encumbrance or charge to be removed or discharged not later
than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
the preceding sentence, if applicable, then, in addition to any other right or remedy of
City, City may, but shall not be obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or the
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amount or otherwise giving security for such claim, in such manner as is or may be
prescribed by law. Owner shall, immediately upon written demand thereof by City, pay
to City an amount equal to all costs and expenses incurred by City in connection with the
exercise by City of the foregoing right to discharge any such lien, encumbrance or charge.
To the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other costs
of enforcing the obligations secured hereby including without limitation, recording fees,
receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred
by the prevailing party in connection with the enforcement of this Agreement, whether or
not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement; Remedies. Upon the occurrence of any
Event of Default by Owner, City shall be entitled to enforce performance of any obligation
of Owner arising under this Agreement and to exercise all rights and powers under this
Agreement or any law now or hereafter in force. Additionally, without limiting any of City's
other rights or remedies, upon any leasing of a particular Affordable Unit in violation of
this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase
by $2 every five (5) years) per day until the violation has been cured (it being understood
that if the Affordable Unit is unavailable due to material damage or destruction, Section
2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in
addition to enforcement costs and any other damages to which City may be entitled, all
rent charged by Owner in excess of the rental amounts permitted under this Agreement,
with interest thereon from the date paid to Owner until the date paid by Owner to City at
the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner
stipulates, acknowledges and agrees that the amounts described herein are reasonable
estimates of the minimum damages incurred by the City and public as a result of
violation(s), and that actual damage would be impractical or impossible to determine with
accuracy. No remedy herein conferred upon or reserved to City is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy given by this
Agreement to the City may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by the City, and the City may pursue
inconsistent remedies. The City shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the Owner to perform its obligations and
covenants under this Agreement or to enjoin acts or things which may be unlawful or in
violation of the provisions hereof.
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ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
If to the Owner:
Moorpark Casey Road LP
5251 Ericson Way
Arcata, CA 95521
Attn: Chris Dart (cdart@danco-group.com)
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by overnight
4 messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to City in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i)the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii)from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
other than pertaining to this Agreement), shall be rendered against Owner, or their assets
other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7. 6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any of their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the other party. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and such wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in equity
as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7.10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor-in-interest of
such party who has acquired any portion of or interest in the Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7.13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property "run with the land".
7.14 Transfers. Owner shall provide the City with at least thirty (30) days' prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Court for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its address for notices
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pursuant to this Agreement. Nothing contained herein shall affect the right of the City to
serve process in any other manner permitted by law.
7.19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
a) "Hazardous Materials" shall mean:
1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of the
California Health and Safety Code at such time;
2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117.5 or 25501(j) of the California
Health and Safety Code at such time;
3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
b) "Hazardous Materials Laws" means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner hereby agrees that:
a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as "Hazardous
Materials Claims"); (3) the presence of any Hazardous Materials in, on or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "borderzone
property" under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of(1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occupying or
present on the Project or the Property, in connection with the handling, treatment,
removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Property. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Materials Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7.19.4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Property
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor's liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000)for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then-current limit.
b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it continues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not less than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one-half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best's Insurance Guide, or any successor thereto
or if there be none, an organization having a national reputation) as having a "Best's
Rating" of "A" and a "Financial Size Category" of at least "VII" or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies shall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance.
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8. 7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the "Developer"
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due to a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2. 2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements that
are then in effect (collectively "the Building Codes").
8.2. 4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8. 3 Densities Allowed for Development. Owner agrees that densities vested
and incentives and concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to which Developer is
entitled under the Moorpark Municipal Code, Government Code Sections 65915 through
65917.5 or both Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and include all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second "back-up" district) or one
Assessment District containing two zones (one zone to be fully funded and the other to
be a back up zone), as determined by the City at the City's discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPD 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any such fees under
protest pursuant to California Government Code Section 66020 and statutes amendatory
or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parking spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner acknowledges the City's ability to modify the
development standards and to change the General Plan designation and zoning of the
Property upon the termination or expiration of the Development Agreement (if the Project
has not been built), and Developer hereby waives any rights they might otherwise have
to seek judicial review of such City actions to change the development standards, General
Plan designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City.
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 for storm water/retention purposes for the Project, and City shall execute and deliver
a revocable license agreement to Owner to that effect.
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WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
CITY:
CITY OF MOORPARK
By:
Print Name:
Title:
OWNER:
MOORPARK CASEY ROAD LP,
a California limited partnership
By: Moorpark Casey Road LLC,
a California limited liability company,
its Administrative General Partner
By: Danco Communities,
a California corporation,
its Manager
By:
Daniel Johnson
President
By: Community Revitalization and
Development Corporation, a
California nonprofit public benefit
corporation, its Managing General
Partner
By:
David Rutledge
President
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of Ventura
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Ventura
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
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EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT"T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20' 34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03' 54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
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EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831- 00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT"T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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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
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EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Low Income 51% and Above 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
apartment/walk-up unit type, Locality "Area Housing Authority of the County of Ventura, CA".
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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.
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EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification Recertification Unit Number
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied
for in the above apartment project. Listed below are the names of all persons who intend
to reside in the unit:
1. 2. 3. 4. 5.
Name of Members Relationship
Of the to Head of Social Security Place of
Household Household Age Number Employment
Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
fora unit is $
If this form is being completed in accordance with recertification of an Extremely Low Income Tenant's or Very Low Income Tenant's
or a Low Income Tenant's occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a Low Income Unit,respectively,
this form must be completed based upon the current income of the occupants.
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Included in the total anticipated income listed above are:
a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal services;
b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An 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;
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h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the special
pay to a family member serving in the Armed Forces who is exposed to hostile fire; and
Excluded from such anticipated income are:
a) income from employment of children (including foster children) under the age of
18 years;
b) payments received for the care of foster children or foster adults (usually persons with
disabilities, unrelated to the tenant family, who are unable to live alone);
c) lump sum additions to family assets, such as inheritances, insurance payments
including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any family member;
e) income of a live-in aide, as defined by 24 CFR §5.403;
f) the full amount of student financial assistance paid directly to the student or to the
educational institution;
g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits because
they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
3) amounts received by a participant in other publicly assisted programs which
are specifically for or in reimbursement of out-of-pocket expenses incurred (special
equipment, clothing, transportation, child care, etc.) and which are made solely to allow
participation in a specific program;
4) amounts received under a resident service stipend is a modest amount (not
to exceed $200 per month) received by a resident for performing a service for the Public
Housing Issuer or owner, on a part-time basis, that enhances the quality of life in the
development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
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5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family member as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
i) temporary, nonrecurring or sporadic income (including gifts);
a) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
k) earnings in excess of $ 480 for each full-term student 18 years old or older
excluding the head of household and spouse);
I) adoption assistance payments in excess of$480 per adopted child; and
m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or
b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Yes No
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c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
Yes No
d) If the answer to (c) above is yes, state:
1) the combined total value of all such assets: $
2) the amount of income expected to be derived from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ and
3) the amount of such income, if any, that was included in item 6 above:
8. Are all of the individuals who propose to reside in the unit full-time students*?
Yes No
A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the "Owner"), has
any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner
to determine maximum income for eligibility to occupy the unit; and I/we declare that all
information set forth herein is true, correct and complete and based upon information I/we
deem reliable and that the statement of total anticipated income contained in paragraph 6
is reasonable and based upon such investigation as the undersigned deemed necessary.
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11. I/We will assist the Owner in obtaining any information or documents required to
verify the statements made herein, including either an income verification from my/our
present employer(s) or copies of federal tax returns for the immediately preceding
calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent
or terminate my/our occupancy of the unit by institution of an action for ejection or other
appropriate proceedings.
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this day of 20 year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
Signature of all persons (except children under the age of 18 years) listed in number 2
above required]
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FOR COMPLETION BY OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7( d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($
2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount in
7(d)(1) would be if invested in passbook savings ($ subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance
3) Enter at right the greater of the amount calculated under (1) or (2) above:
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b( 3)): $
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
Qualifies the applicant(s) as an Extremely Low Income Tenant(s).
3. Number of apartment unit assigned: Bedroom size:
Rent: $
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other(
6. Is occupant a City of Moorpark resident on the waiting list who was given priority?
Yes: No:
Manager Date
B-46
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115
Ordinance No. 509
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INCOME VERIFICATION
FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages Gross) Other Income
Avg. Total Hours
Overtime Worked Weekly
Bonuses Total Current Income
Commissions Year-to-Date Income
Current Base Pay
Pay Period: [ ] Weekly [ ] Bi-weekly [ ] Monthly [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase$ per start
date:
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
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APPLICANT
I hereby grant you permission to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
Date
Print Name (Resident) Signature (Resident)
Please send to:
Management Co.
or Owner)
I
i
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INCOME VERIFICATION
for self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
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INCOME VERIFICATION
for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to the
specific information requested below:
Date:
Signature:
Social Security No.:
Name (Print):
Address(Print)
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deductions: $
Are benefits expected to change?[ ] Yes [ ] No
If yes, please state date and amount:
Date: of change
Amount $
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If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption:
Amount:
Date:
Signature:
Title:
Please send form to:
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INCOME VERIFICATION
for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date:
Signature:
Caseload Number:
Name (Print):
Case Number:
Case Worker:
1. Number of persons included in budget:
2. Total monthly budget $
a) Amount of grant $
b) Date aid last began:
c)Other income and source:
d) Is other income included in total budget? 0 Yes 0 No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):
4. If recipient is not receiving full grant, please indicate reason:
Overpayment due to client's failure to report other income
Computation error
Other:
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Date when full grant will resume:
Date:
Case Worker's Signature:
Telephone:
District Office:
Your very early response will be appreciated.
Please return form to:
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DECLARATION OF NO INCOME
As managing agents for
Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
Name of Management Company
By:
Name and Title
CERTIFICATION
I, do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
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Support Verification
Source's Mailing Address:
Phone #:
Fax #:
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information requested
below regarding the above referenced individuals. This information will be used only for
determination of eligibility and/or rent computation. You will notice a release of
information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:
Social Security #:
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Please complete the following. If the monies are based on a percentage of the payor's
income, please indicate the average amount per period.
Type of Benefit Amount Frequency
Child Support weekly( ) monthly ( ) yearly
Family Support weekly ( ) monthly ( ) yearly
Alimony weekly( ) monthly ( ) yearly
Other weekly( ) monthly( ) yearly
Please list type)
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments:
Signature of Source:
SSN#:
Date Completed Form:
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I
IEXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING
The undersigned, as the authorized
representative of the "Owner"), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites ("Developer") and the City of the City of Moorpark (the
City"), dated as of 20_
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date an Extremely Low
Income Tenant or Very Low Income Tenant vacated such Unit, as indicated:
Occupied by Extremely Low Income Tenants:
Number of Units:
Occupied by Very Low Income Tenants:
Number of Units:
Occupied by Low Income Tenants:
Number of Units:
Held vacant for occupancy continuously since last occupied by Extremely Low Income
Tenants and Very Low Income Tenants and Low Income Tenants.
Vacant Units
Number:
Occupied Units
Number:
Extremely Low Income Tenants and Very Low Income Tenants and Low Income Tenants
who commenced occupancy of Units during the preceding [month/quarter]:
Extremely Low Income:
Units Nos.:
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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:
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EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
Attached.)
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B-61
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EXHIBIT "C"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
Exhibit F of First Amendment)
Design Phase: Complete on or before December 31, 2021
Tax-Exempt Bond and Tax Credit Applications: March 16, 2022
Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022
Plan Check/Building Permits: December 31, 2022
Date property must be acquired by Affordable Housing Owner: December 31, 2022
Evidence to City of all debt/equity funds for all Project costs (with comprehensive Project
budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing:
December 31, 2022
Grading: To commence within 30 days after acquisition of property by Affordable Housing
Owner or affiliate
Construction: 24 months from commencement of grading
Lease-Up: approximately 3 months following construction completion.
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EXHIBIT "D"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
FORM OF OFFSITE IMPROVEMENT PERFORMANCE AND PAYMENT BONDS
Exhibit K of First Amendment)
Attached.)
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BOND NO.
INITIAL PREMIUM:
SUBJECT TO RENEWAL
PERFORMANCE BOND
WHEREAS, the City of Moorpark ("CITY") has executed an agreement with
Essex Moorpark Owner, L.P. (hereinafter "PRINCIPAL"), requiring PRINCIPAL to: (i)
perform certain work consisting of, but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the relocation of electrical transmission lines
hereinafter the "Work") and (ii) paying the City $400,000 in connection with that Work
Payment");
WHEREAS, the Work and Payment to be performed or made by
PRINCIPAL is more particularly set forth in that certain Second Amendment to 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
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made evident during the period of one (1) year(s)from the date of completion of the work,
and resulting from or caused by defective materials or faulty workmanship, the above
obligation in penal sum thereof shall remain in full force and effect. The obligation of
SURETY hereunder shall continue so long as any obligation of PRINCIPAL remains.
Whenever PRINCIPAL shall be, and is declared by the CITY to be, in default
under the contract, the CITY having performed the CITY's obligations thereunder, the
SURETY shall promptly remedy the default in a manner mutually agreeable to both CITY
and SURETY:
1. SURETY's takeover of the performance obligations to complete the
contract by entering into an agreement with a completion contractor with terms and
conditions consistent with the original contract between CITY and PRINCIPAL; or
2. SURETY shall obtain a bid or bids for completing the contract in
accordance with its terms and conditions, and upon determination by SURETY of the
lowest responsive and responsible bidder, prepare a contract between such bidder and
the CITY (to the CITY's satisfaction), and make available as work progresses sufficient
funds to pay the cost of completion less the balance of the contract price, but not
exceeding, including other costs and damages for which 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.
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The said SURETY, for value received, hereby stipulates and agrees that no
change, extension of time, alteration or additions to the terms of the said Agreement or
to the Work to be performed thereunder or the specification accompanying the same shall
in any way affect its obligations on this bond, and it does hereby waive notice of any such
change, extension of time, alteration or addition to the terms of the Agreement or to the
Work.
IN WITNESS WHEREOF, we have hereto set our hands and seals this
day on 20
PRINCIPAL
By:
President
SURETY
By:
Attorney-in-Fact
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Ordinance No. 509
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CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Ventura
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
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Ordinance No. 509
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CERTIFICATE AS TO CORPORATE PRINCIPAL
certify that I am the Secretary of the
corporation named as principal in the attached bond, that who signed the said bond
on behalf of the principal was then of said corporation; that I know his signature,
and his signature thereto is genuine; and that said bond was duly signed, sealed and
attested for and in behalf of said corporation by authority of its governing Board.
Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company
may be attached hereto.
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Ordinance No. 509
Page 81
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
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Ordinance No. 509
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of the contractor and his subcontractors pursuant to Section 13020 of the Unemployment
Insurance Code with respect to such work and labor, and all other applicable laws of the
State of California and rules and regulations of its agencies, then said 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
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Page 83
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Riverside
On before me,
insert name and title of the officer)
Notary Public, personally appeared
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature Seal)
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Ordinance No. 509
Page 84
CERTIFICATE AS TO CORPORATE PRINCIPAL
certify that I am the Secretary of the
corporation named as principal in the attached bond, that who signed the said bond
on behalf of the principal was then of said corporation; that I know his signature,
and his signature thereto is genuine; and that said bond was duly signed, sealed and
attested for and in behalf of said corporation by authority of its governing Board.
Corporate Seal)
Signature:
Date:
NOTE: A copy of the power of attorney to local representatives of the bonding company
may be attached hereto.
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Ordinance No. 509
Page 85
STATE OF CALIFORNIA
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK
I, Ky Spangler, City Clerk of the City of Moorpark, California, do hereby certify under
penalty of perjury that the foregoing Ordinance No. 509 was adopted by the City Council of
the City of Moorpark at a regular meeting held on the 2nd day of November, 2022 and that
the same was adopted by the following vote:
AYES: Councilmembers Castro, Enegren, Groff, Pollock and Mayor Parvin
NOES:None
ABSENT:None
ABSTAIN:None
WITNESS my hand and the official seal of said City this 3rd day of November, 2022.
V
Ky Spa ler
City Clerk
seal)
ono 11
ilrikPAIV
Are
gTt0E ,,
141
RESOLUTION NO. PC-2023-699
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, CALIFORNIA RECOMMENDING THE CITY COUNCIL
ADOPT AN ORDINANCE APPROVING THE SECOND AMENDMENT TO
THE DEVELOPMENT AGREEMENT NO. 2018-01 BETWEEN THE CITY
OF MOORPARK AND HIGH STREET DEPOT, LLC AND MAKING A
DETERMINATION THAT NO FURTHER ENVIRONMENTAL REVIEW IS
REQUIRED PURSUANT TO CALIFORNIA ENVIRONMENTAL QUALITY
ACT GUIDELINES SECTION 15162
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, the Daly Group, Inc., as the predecessor developer, applied to the
City to build a mixed-use commercial and residential project including 79 residential
dwelling units and 13,628 square feet of commercial floor area within four mixed-use
buildings and three standalone commercial buildings on the Property located at 226 High
Street in the City of Moorpark (the “City”) (the “Project”); and
WHEREAS, on September 10, 2020, the Planning Commission recommended
approval of Resolution No. PC-2020-653, recommending the City Council determine the
Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 7, 2020, the City Council adopted Resolution Nos. 2020-
3949 and 2020-3950, approving a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program for the Project, conditionally approving Residential
Planned Development Permit No. 2018-01 for the Project, and a Disposition and
Development Agreement (DDA), for a mixed-use development consisting of 79 residential
units, 13,628 square feet of commercial and associated land improvements located at
226 High Street in the Downtown Specific Plan on an application of the Developer, and
finding the Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 21, 2020, the City Council adopted Ordinance No. 484,
approving Development Agreement (DA) No. 2018-01; and
WHEREAS, on September 27, 2022, the Planning Commission adopted
Resolution No. PC-2022-681, recommending approval of the First Amendment to
Development Agreement No. 2018-01 (DA); and
WHEREAS, on November 2, 2022, the City Council adopted Ordinance No. 507,
approving the First Amendment to Development Agreement (DA) No. 2018-01; and
ATTACHMENT 3
142
Resolution No. PC-2023-699
Page 2
WHEREAS, on March 27, 2023, pursuant to Section 4.1 of the Disposition and
Development Agreement that was entered into by the parties on October 23, 2020 ( the
“DDA”), all rights, title, interest in and to the DA and the DDA were assigned from the Daly
Group, Inc. (as assignor) to the High Street Depot, LLC (as assignee) by way of a
document entitled as Assignment and Assumption of City Agreements so that High Street
Depot, LLC became the developer of the Project (“Developer”); and
WHEREAS, on March 31, 2023, the property that is the subject of the DA was
conveyed from the City, as grantor, to Developer, as grantee, by way of a Grant Deed
recorded as Document No. 2023000023336; and
WHEREAS, Developer has commenced grading of the project site, after obtaining
approval of building plans from the City; and
WHEREAS the Developer and City staff have negotiated a draft Affordable
Housing Agreement for the Project to set forth requirements for the required affordable
dwelling units at the Project. The DA needs to be amended to conform to the negotiated
terms of the Affordable Housing Agreement; and
WHEREAS, the Developer has agreed to the terms as outlined in the Second
Amendment to DA; and
WHEREAS, pursuant to California Government Code Section 65867 and
Moorpark Municipal Code Section 15.40.080, a duly noticed public hearing was
conducted by the Planning Commission on September 26, 2023, to consider the Second
Amendment the DA and to accept public testimony related thereto; and
WHEREAS, the Planning Commission has considered all points of public
testimony relevant to the Second Amendment to the DA and has given the matter careful
consideration.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. Recitals. The Planning Commission finds that all of the facts set forth
in the Recitals to this Resolution are true and correct.
SECTION 2. CEQA. The Planning Commission concurs with the Community
Development Director that the Second Amendment to the Development Agreement is
consistent with, and within the scope of, the Mitigated Negative Declaration adopted for
the Residential Planned Development Permit No. 2018-01. Thus, no subsequent
environmental review is required pursuant to CEQA Guidelines Section 15162 for the
reasons set forth below:
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Resolution No. PC-2023-699
Page 3
A.On October 7, 2020, the City Council adopted Resolution Nos. 2020-3949
approving a Mitigated Negative Declaration (MND) and Mitigation
Monitoring and Reporting Program (MMRP) for the Project. City staff
reviewed the MND and has determined that the Project and the
circumstances under which the Project is undertaken do not involve
substantial changes which will result in new significant environmental
effects, and that the Project does not involve new information of substantial
importance which shows that the Project will have significant effects not
discussed in the MND. All potential environmental impacts associated with
the Project are adequately addressed by the MND, and the mitigation
measures contained in the MMRP will reduce those impacts to a level that
is less than significant.
B.Based upon the whole record before it and its independent review and
judgment, the Planning Commission concurs with staff and finds that that
the Project is not subject to further environmental review pursuant to CEQA
Guidelines Section 15162 because:
i.The Project and the circumstances under which the Project is
undertaken do not involve substantial changes which will
result in new significant environmental effects;
ii.The Project does not involve new information of substantial
importance which shows that the Project will have significant
effects not discussed in the MND; and
iii.All potential environmental impacts associated with the
Project are adequately addressed by the MND, and the
mitigation measures contained in the MMRP will reduce those
impacts to a level that is less than significant.
The custodian of records for the MND, and all other materials that constitute the
record of proceedings upon which the determination is based, is the Community
Development Department of the City. Those documents are available for public review
with the City of Moorpark, Community Development Department, 799 Moorpark Avenue,
Moorpark, California, 93021.
SECTION 3. Development Agreement Findings. The Planning Commission finds
and declares that:
A.The provisions of the Second Amendment to the Development Agreement
are consistent with the General Plan and Downtown Specific Plan in that
the Project is consistent with the Specific Plan – Downtown 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.
The development of a mixed-use project in accordance with the General
Plan and Downtown Specific Plan furthers the City’s goals to revitalize the
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Resolution No. PC-2023-699
Page 4
Downtown, achieve a well-balanced and diversified economy, and provide
a variety of housing options.
B. The provisions of the Second Amendment to the Development Agreement
are consistent with this chapter 15.40 of the Moorpark Municipal Code
because the Development Agreement contains the elements required by
Section 15.40.030 and has been processed through a duly noticed public
hearing, as required by law.
SECTION 4. Based on the findings and conclusions set forth in the above
sections, and based on all the other evidence in the record, the Planning Commission
recommends that the City Council adopt an Ordinance approving the Second Amendment
to DA 2018-01, a draft of which is substantially set forth in Exhibit A to this Resolution.
SECTION 5. 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, Hamalainen, and Chair Landis
NOES:
ABSTAIN: Commissioner Di Cecco
ABSENT:
PASSED, AND ADOPTED this 26th day of September, 2023.
Kipp Landis
Chair
Carlene Saxton
Community Development Director
Attachment:
EXHIBIT A: Draft Second Amendment to Development Agreement
145
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA,
APPROVING THE SECOND AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2018-01 BETWEEN THE
CITY OF MOORPARK AND HIGH STREET DEPOT, LLC AND
MAKING A DETERMINATION THAT NO FURTHER
ENVIRONMENTAL REVIEW IS REQUIRED PURSUANT TO
CALIFORNIA ENVIRONMENTAL QUALITY ACT GUIDELINES
SECTION 15162
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, the Daly Group, Inc. applied to the City to build a mixed-use
commercial and residential project including 79 residential dwelling units and 13,628
square feet of commercial floor area within four mixed-use buildings and three stand-
alone commercial buildings on the Property located at 226 High Street in the City of
Moorpark (the “City”) (the “Project”); and
WHEREAS, on September 10, 2020, the Planning Commission recommended
approval of Resolution No. PC-2020-653, recommending the City Council determine the
Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 7, 2020, the City Council adopted Resolution Nos. 2020-
3949 and 2020-3950, approving a Mitigated Negative Declaration and Mitigation
Monitoring and Reporting Program for the Project, conditionally approving Residential
Planned Development Permit No. 2018-01 for the Project, and a Disposition and
Development Agreement (DDA), for a mixed-use development consisting of 79 residential
units, 13,628 square feet of commercial and associated land improvements located at
226 High Street in the Downtown Specific Plan on an application of the Developer, and
finding the Project consistent with the General Plan per Government Code 65402; and
WHEREAS, on October 21, 2020, the City Council adopted Ordinance No. 484,
approving Development Agreement (DA) No. 2018-01; and
WHEREAS, on September 27, 2022, the Planning Commission adopted
Resolution No. PC-2022-681, recommending approval of the First Amendment to DA No.
2018-01 ; and
WHEREAS, on November 2, 2022, the City Council adopted Ordinance No. 507,
approving the First Amendment to DA No. 2018-01 to remove a small rectangular portion
at the southwest corner of the project site from the property that would be developed; and
ATTACHMENT 4
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Ordinance No. ___
Page 2
WHEREAS, on March 27, 2023, pursuant to Section 4.1 of the Disposition and
Development Agreement that was entered into by the parties on October 23, 2020 ( the
“DDA”), all rights, title, interest in and to the DA and the DDA were assigned from the Daly
Group, Inc. (as assignor) to the High Street Depot, LLC (as assignee) by way of a
document entitled as Assignment and Assumption of City Agreements so that High Street
Depot, LLC became the developer of the Project (“Developer”); and
WHEREAS, on March 31, 2023, the property that is the subject of the DA was
conveyed from the City, as grantor, to Developer, as grantee, by way of a Grant Deed
recorded as Document No. 2023000023336; and
WHEREAS, Developer has commenced grading of the project site, after obtaining
approval of building plans from the City; and
WHEREAS, City staff has negotiated a draft Affordable Housing Agreement for the
Project to set forth requirements for the required affordable dwelling units at the Project.
The DA needs to be amended to conform to the negotiated terms of the Affordable
Housing Agreement; and
WHEREAS, the Developer has agreed to the terms as outlined in the Second
Amendment to DA; and
WHEREAS, pursuant to California Government Code Section 65867 and
Moorpark Municipal Code Section 15.40.080, a duly noticed public hearing was
conducted by the Planning Commission on September 26, 2023, to consider the Second
Amendment the DA and to accept public testimony related thereto. The Planning
Commission adopted Resolution No. PC-2023-699, recommending that the City Council
approve the Second Amendment to Development Agreement No. 2018-01 (DA); and
WHEREAS, pursuant to California Government Code Section 65867 and
Moorpark Municipal Code Section 15.40.080, a duly noticed public hearing was
conducted by the City Council on October 18, 2023, to consider the Second Amendment
to the DA and to accept public testimony related thereto.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The City Council finds that all of the facts set forth in the
Recitals to this Ordinance are true and correct.
SECTION 2. Record. Prior to taking action, the City Council has heard, been
presented with, reviewed and considered the information and data in the record, including
oral and written testimony presented for and during the public hearings.
SECTION 3. CEQA. The City Council concurs with the Community Development
Director that the Second Amendment to the Development Agreement is consistent with,
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Ordinance No. ___
Page 3
and within the scope of, the Mitigated Negative Declaration adopted for the Residential
Planned Development Permit No. 2018-01. Thus, no subsequent environmental review
is required pursuant to CEQA Guidelines Section 15162 for the reasons set forth below:
A. On October 7, 2020, the City Council adopted Resolution Nos. 2020-3949
approving a Mitigated Negative Declaration (MND) and Mitigation
Monitoring and Reporting Program (MMRP) for the Project. City staff
reviewed the MND and has determined that the Project and the
circumstances under which the Project is undertaken do not involve
substantial changes which will result in new significant environmental
effects, and that the Project does not involve new information of substantial
importance which shows that the Project will have significant effects not
discussed in the MND. All potential environmental impacts associated with
the Project are adequately addressed by the MND, and the mitigation
measures contained in the MMRP will reduce those impacts to a level that
is less than significant.
B. Based upon the whole record before it and its independent review and
judgment, the City Council concurs with staff and finds that the Project is
not subject to further environmental review pursuant to CEQA Guidelines
Section 15162 because:
i. The Project and the circumstances under which the Project is
undertaken do not involve substantial changes which will
result in new significant environmental effects;
ii. The Project does not involve new information of substantial
importance which shows that the Project will have significant
effects not discussed in the MND; and
iii. All potential environmental impacts associated with the
Project are adequately addressed by the MND, and the
mitigation measures contained in the MMRP will reduce those
impacts to a level that is less than significant.
The custodian of records for the MND, and all other materials that constitute the
record of proceedings upon which the determination is based, is the Community
Development Department of the City. Those documents are available for public review
with the City of Moorpark, Community Development Department, 799 Moorpark Avenue,
Moorpark, California, 93021.
SECTION 4. Development Agreement Findings. The City Council finds and
declares that:
A. The provisions of the Second Amendment to the Development Agreement
are consistent with the General Plan and Downtown Specific Plan in that
the Project is consistent with the Specific Plan – Downtown land use
designation, helps achieve the goals of the Land Use Element and Housing
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Ordinance No. ___
Page 4
Element, and is consistent with the goals and policies of all other elements.
The development of a mixed-use project in accordance with the General
Plan and Downtown Specific Plan furthers the City’s goals to revitalize the
Downtown, achieve a well-balanced and diversified economy, and provide
a variety of housing options.
B. The provisions of the Second Amendment to the Development Agreement
are consistent with Chapter 15.40 of the Moorpark Municipal Code because
the DA contains the elements required by Section 15.40.030 and has been
processed through a duly noticed public hearing, as required by law.
SECTION 5. Development Agreement Approval. Based on the findings and
conclusions set forth in the above sections, and based on all other evidence in the Project
record, the City Council hereby adopts this Ordinance approving the Second Amendment
to DA 2018-01, a draft of which is substantially set forth in Exhibit A to this Ordinance.
SECTION 6. Severability. If any section, subsection, sentence, clause, phrase,
part of portion of this Ordinance is for any reason held to be invalid or unconstitutional by
any court of competent jurisdiction, such decision shall not affect the validity of the
remaining portions of this Ordinance. The City Council declares that it would have
adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or
portion thereof, irrespective of the fact that any one or more section, subsections,
sentences, clauses, phrases, parts or portions may be declared invalid or
unconstitutional.
SECTION 7. Effective Date. This Ordinance shall become effective 30 days after
its passage and adoption. The City Clerk shall cause a summary of this Ordinance to be
published within 15 days after passage in accordance with Section 36933 of the
Government Code of the State of California with the names of the City Councilmembers
voting for and against it.
SECTION 8. Execution of DA. The Applicant shall execute the Second
Amendment to DA No. 2018-01 after the adoption of this Ordinance. The City shall then
execute the Second Amendment to DA No. 2018-01 after the effective date of this
Ordinance.
SECTION 9. Recordation of DA. Pursuant to Government Code Section 65868.5,
no later than 10 days after both the effective date of this Ordinance and the execution of
the Second Amendment to DA No. 2018-01, the City Clerk shall record with the County
Recorder a copy of the Second Amendment to DA No. 2018-01.
SECTION 10. Certification. 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
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Ordinance No. ___
Page 5
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
Ky Spangler, City Clerk
Attachment:
EXHIBIT A: Draft Second Amendment to Development Agreement
150
DRAFT
-1-
12853-0062\2835089v2.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 Government Code § 6103
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
HIGH STREET DEPOT, LLC
151
-2-
12853-0062\2835089v2.doc
SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT (“Amendment”) is
dated as of ___________, 2023, and is entered into by and between the CITY OF MOORPARK,
a municipal corporation (“City”), and HIGH STREET DEPOT, LLC, a California limited liability
company (“Developer”).
RECITALS
WHEREAS, the City and Daly Group, Inc., a California corporation entered into that
certain Development Agreement dated October 23, 2020, which was recorded on November 2,
2020 as Document No. 20201102-00183317-0 1/52 in the Official Records of Ventura County,
California (“Original DA”); and
WHEREAS, The Original DA was approved in connection with the planned mixed-use
commercial and residential project including 79 residential dwelling units and 13,628 square feet
of commercial floor area within four mixed-use buildings and three stand-alone commercial
buildings on the Property that was the subject of the Original DA; and
WHEREAS, the City and the Daly Group, Inc. entered into that certain First Amendment
to the Development Agreement dated December 2, 2022, which was recorded on December 5,
2022 as Document No. 22022000113646 in the Official Records of Ventura County, California
(“First Amendment”) for purposes of excluding from the property to be developed a small
rectangular area at the southwest corner of the project site; and
WHEREAS, the Original DA and First Amendment are collectively referred to herein as
the DA; and
WHEREAS, on March 27, 2023, pursuant to Section 4.1 of the Disposition and
Development Agreement that was entered into by the parties on October 23, 2020 ( the “DDA”),
all rights, title, interest in and to the DA and the DDA were assigned from the Daly Group, Inc.
(as assignor) to the High Street Depot, LLC (as assignee) by way of a document entitled as
Assignment and Assumption of City Agreements; and
WHEREAS on March 31, 2023, the property that is the subject of the DA was conveyed
from the City, as grantor, to High Street Depot, LLC, a California limited liability company, as
grantee, by way of a Grant Deed recorded as Document No. 2023000023336; and
WHEREAS, City and High Street Depot, LLC, as Developer, desire to amend the DA to
conform the DA to certain provisions in the Affordable Housing Agreement to be entered into by
and between the City and the Developer.
NOW, THEREFORE, the parties hereby agree as follows:
1. Recitals. The Recitals are true and correct and constitute a material part of this
Amendment.
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2. Accessible Units. Paragraph (a) of Section 6.9 of the DA shall be amended to read as set
forth below:
“Developer shall not be entitled to any additional density bonuses or incentives or
concessions as otherwise granted pursuant to State law, and further agrees, in consideration
for the density obtained through the Project Approvals, to construct on site and income
restrict twelve (12) residential rental units (all for moderate income levels) to eligible
tenants meeting moderate income thresholds for the life of the Project. The twelve units
shall consist of eight (8) studio apartments and four (4) two bedroom apartments, as
identified on Exhibit "D" hereof; provided, however, that Developer may change the
location of such units within the Project, subject to the reasonable approval of the City
Manager. Two (2) studio apartments shall be handicap accessible and shall be reserved for
and occupied by persons eligible for such accommodations, to the extent there is a qualified
handicapped affordable person ready to occupy such unit. Should there be a qualified
moderate income prospective tenant desiring to rent such unit but all such units are rented,
Developer shall add such prospective tenant to the waiting list until such affordable
handicap accessible units becomes available. When an affordable unit that is not handicap
accessible becomes available, the non-handicapped affordable tenant who occupies the
affordable handicap unit shall be relocated to another affordable unit that is not handicap
accessible in order to allow the qualified handicap tenant to occupy the handicap accessible
unit. Developer shall include a provision in the non-handicap affordable unit lease that the
non-handicap affordable tenant agrees to be relocated, at Developer cost, as soon as the
non-handicap unit becomes available.”
3. Life of the Project. Paragraph (j) is hereby added to Section 6.9 of the DA to read as set
forth below:
“For purposes of this Section 6.9, “life of the project” means the earliest of either: (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 the Affordable Housing Agreement for the
Property entered into by and between High Street Depot LLC and the City.”
4. Effect of Amendment. Except as expressly set forth in this Amendment, the DA shall
remain unmodified and shall remain in full force and effect.
5. 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
the day and year first above written.
DEVELOPER:
HIGH STREET DEPOT, LLC,
a California limited liability company
By:
Vincent Daly,
Managing Member
CITY:
CITY OF MOORPARK,
a municipal corporation
By:
Chris Enegren, Mayor
By:
Brian Mathews,
Managing Member
ATTEST:
Ky Spangler, City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
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A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the truthfulness,
accuracy, or validity of that document.
State of California )
County of )
On _________________________, before me, ,
(insert name and title of the officer)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
155
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12853-0062\2835089v2.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)
156