HomeMy WebLinkAboutAGENDA REPORT 2024 0103 CCSA REG ITEM 08ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of January 3, 2024
ACTION APPROVED STAFF
RECOMMENDATION, INCLUDING
INTRODUCTION OF ORDINANCE NO.
520. (ROLL CALL VOTE: UNANIMOUS)
BY A. Hurtado.
A. Consider an Ordinance Approving the Fourth Amendment to Development
Agreement No. 2012-03 between the City of Moorpark and Essex Moorpark
Owner, L.P., and Making a Determination of Exemption Pursuant to the California
Environmental Quality Act in Connection Therewithin, on the Application of Dan
Johnson of Danco Communities (on Behalf of Moorpark Casey Road, L.P.).
Planning Commission Recommendation: 1) Open the public hearing, accept public
testimony, and close the public hearing; and 2) Introduce Ordinance No. 520
approving the Fourth Amendment to Development Agreement between the City of
Moorpark and Moorpark Casey Road, L.P. for first reading, waive full reading, and
place this Ordinance on the agenda for January 17, 2024, 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
BY: Shanna Farley, Principal Planner
DATE: 01/03/2024 Regular Meeting
SUBJECT: Consider an Ordinance Approving the Fourth Amendment to
Development Agreement No. 2012-03 between the City of Moorpark
and Essex Moorpark Owner, L.P., and Making a Determination of
Exemption Pursuant to the California Environmental Quality Act in
Connection Therewithin, on the Application of Dan Johnson of Danco
Communities (on Behalf of Moorpark Casey Road, L.P.)
PROJECT DESCRIPTION AND BACKGROUND
On March 29, 2023, Dan Johnson (“Applicant”), for Danco Communities (on behalf of
Moorpark Casey Road L.P. (“Owner”/“Current Owner”)), submitted a request for a fourth
amendment to the terms of a Development Agreement (“DA”) between the City of
Moorpark (“City”) and Moorpark Casey Road, L.P. (“Prior Owner”), related to a previously
approved 200-unit multi-family apartment project located at 150 Casey Road, referred to
now as Vendra Gardens. The Applicant has requested a fourth amendment
(Attachment 6, Exhibit A) to revise Sections 6.13, 6.25, 6.40, and 7.18 of the DA. This
request is discussed further within the Discussion section below.
“Vendra Gardens” Apartments Project Background and Past Amendment
On October 1, 2012, the Essex Property Trust, Inc. filed an application for Residential
Planned Development Permit No. 2012-02 (“RPD”) and DA No. 2012-03 for the
construction of a 200-unit apartment project. Earlier entitlements, for a similar project at
the site, had since expired. The earlier DA was not executed. On March 1, 2017, the
City Council adopted Resolution No. 2017-3582 approving the RPD. On March 15, 2017,
the City Council adopted Ordinance No. 443 approving the DA (Attachment 1).
On June 7, 2021, an application was filed by the Prior Owner to request the First
Amendment to the DA. On September 15, 2021, the City Council adopted Ordinance
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No. 490 approving the First Amendment to the DA (Attachment 2). The request included:
changing the approved-residential project to be fully affordable; and to finance certain
City development impact fees in the form of a 55-year residual loan.
On September 19, 2022, an application for a second amendment to the DA was filed by
Danco Communities, on behalf of the Prior Owner. The request included: change to the
income-restricted rental rates used in the Affordable Housing Agreement, change to the
income-restricted unit mix, extension of the requirements of Section 2 of the First
Amended DA from October 29, 2022, to December 31, 2022, correction of the description
of the City Site to be conveyed to the City as part of the Project, addition of an exhibit
showing the form and content of the “Offsite Improvement Performance and Payment
Bond”, and modification of the timing and description of the onsite utility undergrounding.
On November 2, 2022, the City Council adopted Ordinance No. 509 approving the
Second Amendment to the DA (Attachment 3).
On December 27, 2022, an application for the Third Amendment to the DA was filed by
the Applicant, on behalf of the Prior Owner. The request included an extension of the
timeline outlined in Section 2 of the First DA to extend to no later than June 30, 2023, to
allow the Current Owner to complete the purchase of the property from the Prior Owner.
On March 1, 2023, the City Council adopted Ordinance No. 511 approving the Third
Amendment to the DA (Attachment 4).
On December 19, 2023, the Planning Commission considered the request for the Fourth
Amendment to the DA and conducted a public hearing to consider the request. The
Planning Commission received a presentation from staff and no public comments were
made. Following deliberation, the Planning Commission unanimously voted to adopt
Resolution No. PC-2023-700 (Attachment 5) recommending the City Council consider an
ordinance approving the requested amendments to the DA.
DISCUSSION
The Applicant has requested the Fourth Amendment to the DA (Attachment 6, Exhibit A)
to update language of the DA to better describe: a) the assessment district boundaries,
b) the emergency and secondary access and pedestrian walkway across the City Site,
c) the terms “residual receipts”, “gross revenue”, and “annual operating expenses”, and
d) the stormwater/flood detention basin construction and their future use. The proposed
amendments include:
a) Change Section 6.13 of the DA to refine the description of the Assessment District to
align with their current location and intended purpose of the District. Clarification is
required here due to meet the requirements from Caltrans to enter into maintenance
agreements for property within Caltrans’ right-of-way. Caltrans will only enter into
those agreements with public agencies; therefore the assessment district language
needs to clarify the boundaries of the district and define maintenance and
administrative responsibilities. The section is proposed to be revised to the following:
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“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 Fifty
Thousand Dollar ($50,000) Assessment District Formation Fee; and (b) a fully-funded
Assessment District shall be formed that includes the Property. The Assessment District
shall be for the purposes of funding future costs for the maintenance of the parkway
landscaping on Casey Road and Walnut Canyon Road, landscaping and irrigation of the
landscaped area on the City Site and southerly of the retaining wall along the northerly
boundary of the City Site, the maintenance of the storm water quality basin and drainage
improvements, including any basin landscaping and irrigation, and the maintenance of the
storm water basin access drive, pedestrian walkway, emergency access drive on the City
Site. 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 that fiscal year. The City shall administer the annual setting of the
levy of the Assessment District, and any costs related to such administration shall be charged
to the Assessment District as permitted by law. Owner agrees to cast affirmative ballots for
the establishment of the Assessment District 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 the 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 City Manager or his or her designee from
time to time.”
b) Change Section 6.25 of the DA to refine the description and intended use of the
emergency and secondary access road and the pedestrian pathway that are to be
located through the City Site. Amendments are required here to accommodate a
larger than originally contemplated retention basin and to ensure the access road and
pedestrian path easements can be relocated into the future to facilitate the widening
of High Street and construction of the library. The section is proposed to be replaced
with the following:
“Emergency and Secondary Access; Pedestrian Walkway. Developer agrees, prior to
issuance of certificate of occupancy for the first residential building within the Project to
construct: (i) a road from High Street to the Property through the City Site for vehicular
emergency and secondary access, and (ii) a walkway from High Street to the Property
through the City Site at its sole cost and expense, as depicted on the building plans for the
Project approved by the City’s Engineer and Community Development Director. The Ventura
County Fire Department has determined that no improvements to High Street are required
for emergency secondary access to the Project. The Developer shall have the right to
construct and utilize the emergency access road and pedestrian walkway in accordance with
an Access and Construction Easement Agreement (or similarly named document) that shall
be entered into between the City and the Developer in the general form attached hereto as
Exhibit “B” to this Fourth Amendment to the DA. The emergency access road and pedestrian
walkway shall be subject to modification and relocation, at the City’s discretion but subject to
the conditions set forth in the easement agreement, as necessary to complete the extension
of High Street within or abutting the City Site and to otherwise use the City Site for other
lawful purposes.”
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c) Change the last paragraph of Section 6.26 of the DA (Section 10 of the First
Amendment, as amended by the Second Amendment) is hereby further amended to
add the following sentence at the end of that last paragraph to clearly define the
timing required for providing the performance bond to the City for relocation of the
overheard power lines. As part of the First Amendment to the DA, the Applicant
requested relief from the original requirement to underground the utility lines and
poles already located on the Project Site and were allowed up to 36 months to
complete the undergrounding. The First Amendment to the DA acknowledged that
the eventual location of the relocated lines and poles relied on compliance with
Southern California Edison regulations and state law, noting that if the relocation
resulted in hard costs of over $500,000, the Applicant would be allowed to relocate
the utility lines and poles to an alternative site (Revised Plan) and to make a bond
payment of a $400,000 to the City. The First Amendment to the DA did not specify
when the payment of the bond was due, therefore the requested amendment would
set forth the timeline for such payment to align with the final inspection or issuance
of a certificate of occupancy for the first multifamily residential building.
“The Offsite Improvement Performance Bond and Payment Bond shall be obtained and filed
with the City prior to final inspection or the issuance of a certificate of occupancy for the first
multifamily residential building constructed on the Property.”
d) Changes to Section 6.40 relate to the terms of City financing of certain fees and
definition of four terms associated with the financing provided by the City to the
developer described in the Second Amendment to the DA (Attachment 3). Changes
in this section are intended to provide staff some authority to amend the percentage
of residual receipts in any given year. This language provides consistency between
the Development Agreement terminology and verbiage contained in the funding
agreement(s) between the developer and private parties. Expected returns through
residual receipts to the City on an annual basis for repayment of the 55-year residual
loan are not materially impacted. The following terms require clarification to better
describe their practical use. The following terms are proposed to be revised as
follows:
“6.40 City Financing of Certain Development Fees through a Residual Receipts Loan.
Developer has requested and City has agreed to finance the payment of certain portions of
City development impact fees required in Sections 6.3 (Development Fee), and 6.7 (Park
Fees and Public Art Fee) to be paid for construction of the Project in the form of a $3,890,500
fifty-five year Residual Receipts Loan (the “City Residual Receipts Loan”) as described
below. The City Residual Receipts Loan shall be evidenced by the City Loan Note and
secured by the City Loan Deed of Trust, which shall include a term of 55 years from
completion and simple interest at 3.00% per annum, which shall be repayable solely from the
City’s pro rata share of 50% of Residual Receipts (which will be shared by other public
lenders making loans required to finance the development). The City Manager shall have
the authority to adjust the residual receipts percentage in the City Loan Note before it is
executed in order to be consistent with the foregoing. The City Residual Receipts Loan shall
be secured by a deed of trust encumbering the Project that is subordinate only to the liens of
the Project’s bond financing and any state agency debt that is required by regulation to be
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senior to the City’s Residual Receipts Loan, and the City Manager shall have the authority to
execute reasonable subordination agreements in connection therewith. The term "Residual
Receipts" in a particular calendar year shall mean the amount by which Gross Revenue
exceeds Annual Operating Expenses.”
"Gross Revenue" means for each calendar year, all revenue, income, receipts, and other
consideration actually received by the borrower from operation and leasing of the Project.
Gross Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants,
payments or other rental subsidy payments received for the dwelling units, deposits forfeited
by tenants, all cancellation fees, price index adjustments and any other rental adjustments
to leases or rental agreements resulting in actual income to Borrower; (2) The proceeds of
business interruption or similar insurance; (3) Any payment received in consideration for the
leasing or other use of any portion of the project; (4) Subject to the rights of senior lenders,
the proceeds of casualty insurance to the extent not utilized to repair or rebuild the project
(or applied toward the cost of recovering such proceeds); (5) Subject to the rights of senior
lenders, condemnation awards for a taking of part or all of the project for a temporary period;
and (6) Gross Revenue shall exclude tenants' security deposits, loan proceeds, capital
contributions or other similar advances."
"Annual Operating Expenses" with respect to a particular calendar year means the following
costs reasonably and actually incurred for operation and maintenance of the project to the
extent that they are consistent with an annual independent audit performed by a certified
public accountant using generally accepted accounting principles: (1) Property taxes and
assessments imposed on the property; (2) Debt service and associated fees currently due
on a non-optional basis (excluding debt service due from residual receipts or surplus cash of
the project) on loans associated with development of the project and approved by the City in
writing; (3) Property management fees and reimbursements, not to exceed fees and
reimbursements which are standard in the industry, and pursuant to a management contract
approved by the City in writing; (4) Premiums for property damage and liability insurance;
(5) Any annual license or certificate of occupancy fees required for operation of the Project;
(6) Annual regulatory compliance monitoring fees payable to the City; (7) Security services;
(8) Advertising and marketing costs; (9) Replenishment of Project reserves and cash
deposited into reserves for capital replacements of the Project in an amount approved by the
City in writing or required as part of any construction or permanent loan for the Project that
is secured by a deed of trust on the Project, and which loan has been approved by the City
in writing; (10) Partnership management fees, asset management fees, and general partner
management fees in the amount in the Borrower’s amended and restated partnership
agreement which has been delivered to the City; (11) Utility services not paid for directly by
tenants, including without limitation, water, sewer, and trash collection; (12) Maintenance and
repair, including pest control, landscaping, grounds maintenance, painting and decorating,
cleaning, common systems repair, and janitorial supplies and services; (13) Social services
fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in
relation to any approved financing; (15) Extraordinary operating costs specifically approved
by the City in writing in its reasonable discretion; (16) Payments of deductibles in connection
with casualty insurance claims not normally paid from reserves, the amount of uninsured
losses actually replaced, repaired or restored, and not normally paid from reserves;
(17) Reasonable accounting fees and legal fees; (18) Payments of Deferred Developer Fee;
and (19) Other ordinary and reasonable operating expenses approved by the City in its
reasonable discretion and not listed above.
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Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion
or other non-cash expenses, the Incentive Management Fee (as defined in the Borrower’s
amended and restated partnership agreement), and any amount expended from a reserve
account.”
e) Changes to Section 7.18 are requested to clarify the intended requirement and right
to construct and use detention basins on the City Site. As noted above, the originally
contemplated design of the detention basin was expanded to include a larger area
and to include a separate temporary sediment basin to be used during construction
as well as to consider the future expansion of High Street, which required this section
to be refined. The section is proposed to be revised as follows:
“Storm Water/Flood Detention Basin. Developer shall construct a permanent detention basin,
temporary sediment basin, and access road to the basins on the City Site in accordance with
grading plans approved by the City Engineer and Community Development Director, at
Developer’s sole cost and expense. The Developer shall have the right to construct such
improvements and use such basins for purposes of the Project in accordance with a Drainage
and Construction Easement Agreement that shall be entered into between the City and the
Developer in the general form attached hereto as Exhibit “C” to this Fourth Amendment to
the DA. The detention basin, temporary sediment basin and access road to the basins shall
be subject to modification and relocation, at the City’s discretion but subject to the conditions
set forth in the easement agreement, as necessary to complete the extension of High Street
within or abutting the City Site and to otherwise use the City Site for other lawful purposes.”
All DA Amendments were considered by an ad hoc committee consisting of
Councilmembers Castro and Groff. The ad hoc committee was appointed on April 7,
2021. The ad hoc committee recommended that staff prepare the draft Fourth
Amendment to the DA to include the Applicant’s request, as described above.
The Applicant is actively grading the Project and City Sites and has completed driven pile
foundations for the Project’s buildings. The Applicant’s building permit plans are in review
and the Applicant is expected to begin vertical construction in the coming months. The
proposed Fourth Amendment is required to allow construction agreements, landscape
assessments, and general construction activities on the Project and City Site.
General Plan, Housing Element, and Zoning Consistency
The proposed Fourth Amendment does not include any physical changes to the Project
or Project Site; therefore, the Project remains consistent with the General Plan and the
Zoning Code, as originally entitled. In addition to the project’s conformance with the Goals
and Policies of the General Plan, the development will also provide the City with
affordable housing units required by the General Plan’s Housing Element and the State
Department of Housing and Community Development. The Project will be constructed to
be fully affordable to lower-income households, except for two on-site managers units.
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ENVIRONMENTAL DETERMINATION
Pursuant to the California Environmental Quality Act, the City Council adopted a Mitigated
Negative Declaration (MND) on July 18, 2007, that analyzed the environmental impacts
associated with development of the Project. The MND determined that there are no
significant impacts with the inclusion of specific mitigation measures identified in the MND
Mitigation Monitoring and Reporting Program. The proposed amendments to the DA do
not present any additional environmental impacts. Therefore, the Project remains
consistent with the previously-adopted MND and no further environmental documentation
is required.
NOTICING
Public Notice for this meeting was given consistent with Chapter 17.44.070 of the Zoning
Ordinance as follows:
1. Publication. The notice of the public hearing was published in the Ventura County
Star on December 24, 2023.
2. Mailing. The notice of the public hearing was mailed on December 22, 2023, to
owners of real property, as identified on the latest adjusted Ventura County Tax
Assessor Roles, within one-thousand (1,000) feet of the exterior boundaries of the
assessor’s parcel(s) subject to the hearing.
3. Sign. Two 32 square-foot signs were placed on the street frontages on
December 22, 2023.
PROCESSING TIME LIMITS
Time limits have been established for the processing of development projects under the
Permit Streamlining Act (Government Code Title 7, Division 1, Chapter 4.5), the
Subdivision Map Act (Government Code Title 7, Division 2), and the California
Environmental Quality Act Statutes and Guidelines (Public Resources Code Division 13,
and California Code of Regulations, Title 14, Chapter 3). However, because the subject
application includes a legislative action to amend a Development Agreement, it is not
subject to the provisions of the Permit Streamlining Act.
FISCAL IMPACT
There are no fiscal impacts associated with this request.
COUNCIL GOAL COMPLIANCE
This action is consistent with Goal 1 of the City Council Goals and Objectives – “THE
Moorpark Quality of Life is reflected in its welcoming small town feel with easy access to
essential amenities and services. Moorpark is a safe, prosperous community that strives
to offer all levels of housing choices.”
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PLANNING COMMISSION RECOMMENDATION (ROLL CALL VOTE REQUIRED)
1.Open the public hearing, accept public testimony, and close the public hearing;
and
2.Introduce Ordinance No.___ approving the Fourth Amendment to Development
Agreement between the City of Moorpark and Moorpark Casey Road, L.P. for first
reading, waive full reading, and place this Ordinance on the agenda for
January 17, 2024, for purposes of providing second reading and adoption of the
Ordinance.
Attachment 1: Development Agreement No. 2012-03
Attachment 2: First Amendment to Development Agreement No. 2012-03
Attachment 3: Second Amendment to Development Agreement No. 2012-03
Attachment 4: Third Amendment to Development Agreement No. 2012-03
Attachment 5: Planning Commission Resolution No. PC-2023-700
(Exhibits excluded are included as part of Attachment 1)
Attachment 6: Draft Ordinance No. ___
Exhibit A: Fourth Amendment to Development Agreement No. 2012-03
8
,
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenu e
Moorp ark, Cal ifo rnia 9302 1
EXEM PT FR OM RECORDER'S FEES
Pursuant to Gove rnment Code
§ 6103 and§ 27383
DEVELOPMENT AGREE MENT
by and between the
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, L.P.
HIIIIW/111111111111111/IIJmll I I! !fl
20170417-00050720-0 1/137
Ventura County Cl er k and Recorder
11MK A. l UNN
04/17/2017 0-2 :ZO :S.3 PN
1189866 $.00 VA
ATTACHMENT 1
9
DEVELOPMENT AGREEMENT
T his Development Agreement ("the Agreement") is made and entered into on
April 17, 20 17, by and between the CITY OF MOORPARK, a munic ipal corporation
(referred to hereinafter as "City") and ESSEX MOORPARK OWNER, L.P., the owner of
real property within the City of Moorpark generally referred to as Residential Planned
Development Perm it 20 12-02 (refe rred to here in after individually as "Developer") .. City
and Developer are referred to hereinafter individually as "Party" and collectively as
"Part ies." Capitalized terms used in this Agreement but not defined herei n shall have
the meanings. given such, term s in the Affordable Housing Agreement (defined in
Section 1.5 hereof). In consideration of the mutua l covenants and agreements
conta ined in this Agreement, City and Develope r agree as follows:
1. Recita ls. Thi s · Agreement is made with respect to the following facts and for the
following purposes, each of wh ich is acknowledged as true and correct by the
Parties:
1.1 Pursuant to Government Code Section 65864 et seq. and Moo rp ark
Munic ipa l Code Chapter 15.40, City is autho rized to ente r i nto a binding
contractual agreement with any person having a legal or equitable interest
in rea l property within its boundaries for the development of such property
in o rder to establish certa inty in the development process.
1.2 Developer is the owner in fee simple of certain real property in the City of
Moorpark, as more spec ifically described by the legal .description set forth
in Exhib it A, which e xhi bit is attached hereto and i ncorporated herein by
this reference (the "Property").
1.3 Prio r to, and in connect ion with , the app roval of this Agreement, the City
Counc i l reviewed the project to be developed pursuant to this Agreement
as requ ired by the California Environmental Quality Act ("CEQA") The
City Counc il found that the Mitig ated Negative Dec laration ("MND") and
Mitigation Monitoring and Reporting Program ("the MMRP") adopted by
Resolut ion No. 2007-2611 to be applicable to this Agreement and the
Project Approva ls as defined in Sectio n 1.4 of this Agreement and that no
change·s or new information within the scope of State CEQA Guidel ines
Sect ion 15162 requ i res the preparation of a new ·or subsequent
envi ronmental document in connecti on with the approva l of this
Agreement.
1.4 General Plan Amendment No . 2004-05 ("GPA 2004-0 5"), Zone Change
No. 2004-04 ("ZC 2004-04"), and Residential Planned Development
Perm it No. 2012-02 ("RPO 2012-02"), inc lud ing all subsequently approved
mod ifications and perm it adjustments to RPO 2012-02 and all
amendments thereto (collecti ve ly "the Pro ject Approvals"; individ ually "a
Proj ect Approval") provide for the development of the Property with a 200 -
10
unit residential apartment comp lex and the construction of certain off-site
improvements in connect ion therewith ("the Project").
1.5 The Project shall include at least fifty (50) Affordable Units rented to
individuals and families whose incomes do not exceed those specified by
the Affordable Housing Agreement executed by the Developer in favor of
the City contempo raneously with this Agreement (the "Affordable Housing
Agreement") at rents no greater than those set forth in the Affo rd able
Housing Agreement (the "Affordable Units"). The Project shall be
restricted and encumbered by the Affordable Housing Agreement. The
City and Developer acknowledge and agree that the Deve loper may apply
for, qualify, develop and finance the Project in a manner that qualifies for
tax exempt bond fi nancing and federal low income housing tax credits. For
that purpose, the Developer may seek City approval for an air ri ghts
subdivis ion of the Project into separate parcels so that the parce ls
containing the 16 Very Low Income Units and the 24 Low Income Units
requ ired by the Affordable Housing Agreement can be conveyed to and
owned by one owner separate from the ownership of the oth er renta l Un its
in the Pro ject, but the Very Low Income Units and the Low Income Un its
can not be sold to or owned by multiple owners (i.e., the Very Low Income
Units and the Low Income Units must be owned by a single owner at all
times, except that the owner of market rate Units may also own ten (10)
Moderate Income Units which will be rented as Low Income Units unti l the
last to end of the Compliance Period and Extended Use Period or
Qualified Project Pe riod). It is ant icipated that if tax exempt bond financ ing
and low income housin g tax credits are used in connection with the
Project the Very Low Income Units, the Low Income Units and the
Moderate Units will be rented and occup ied in acco rdance w ith the
restrictions set forth in the Affordab le Housing Agreement.
1.6 City and Develope r ac kno wledge and agree that the previous
Development Agreement No. 2004-03 fo r the Property, approved by the
City Council on July 18, 2007 by Ordinance No. 355, did not take effect
and was not recorded because the Developer did not execute it. City and
Deve loper also ac kn owledge and agree that by the e nabl ing ordinance
approving this new Agreement, the City's previous approval of
Development Ag ree ment No. 2004-0 3 pursuant to Ordinance No. 355 is
resc ind ed and that resc iss ion will take effect upon the date the enabling
ord ina nce fo r th is Agreement under Government Code Section 36937
("Enabling Ordinance") beco mes effective ("Operative Date").
1. 7 City and Developer acknowledge and agree that the approva l of
Resident ial Planned Development Pe rm it No. 200 4-06 for the Property,
approved by the City Counci l on July 18, 2007 by Resolution No. 2007-
2612, exp i red due to lack of Project inauguration by Develope r.
-2-
12853-001812044326v1 .doc 11
2.
3 .
1.8 By thi~ Agreement, City desires to obta in the b inding agreement of
Deve lope r to develop the Property in accordance with the Project
Approvals and th is Ag reement. In cons ide ration thereof, City agrees to
li mit the futu re exercise of certain of its governmental and proprietary
powers to the extent specified in this Agreement.
1.9 By this Agreement , Developer desi res to obtain the binding agreement of
City to permi t the deve lopment of the Property in accordance with the
Proj ect Approva l s and this Agreement. In cons ideration the reof,
Deve loper agrees to wa ive its rights to legally challenge the l im itat ions and
cond itions imposed upon the development of the Property pu rsuant to the
Project Approva ls and this Agreement and to provide the public benefits
and improvements specified in th is Agreement.
1.10 City and Developer acknowledge and agree that the consideration that is
to be exchanged pursuant to this Ag reement is fair, just and reasonable
a nd that this Agreement is consistent with the General Plan of City, as
currently amended.
1.11 On June 4, 2013, the Planning Comm iss io n commenced a duly noticed
public hearing on this Agreement , and at the conclusion of the hearing on
June 4, 2013 recommended approva l of th is Agreement.
1.12 O n March 1, 2017 , the City Council of City ("City Counc il") commenced a
duly not iced publ ic hearing on th is Ag reement, and following the
conclusion of the hearing app roved the Agreement by adoption of
Ord inance No. 443 ("t he Enabling Ordi nance") on March 15, 2017.
Property Subject To This Agree m ent. All of the Property shall be subject to th is
Agreement. The Property may also be referred to hereinafter as "the site" or "the
Project". ·
Binding Effect. The burdens of th is Agreement are bin ding upon, and the
benefits of the Agreement inure to, each Party and each success ive successor in
interest the reto (subj ect to Section 3.4 be low) and constitute covenants that r un
with the Property. Whenever the terms "City" and "Developer" are used herein,
such terms sh.all include every successive successor i n interest thereto .
3 .1 Constructive Notice and Acceptance . Every pe rson who acquires any
r ight, tit le or interest in or to any portion of the Property sha ll be
conclusively deemed to have consented and agreed to be bound by th is
Agreement , whether or not any reference to the Agreement is conta ined in
the instrume nt by wh ich such pe rson acquired such right , title or interest,
subject to Section 3.4 below.
3.2 Conveyance of Very Low Income Unit s and Low Income Units. Upon
reco rdation of a n app roved fina l map under Sect ion 7.1 below creat ing
.3.
12853,0018/2044326v1 .doc 12
lega l air rights parcels for th e Property and delivery of reasonable
evidence to the City Manager showing that the transferee is partly owned
(directly or indirectly) and is controlled (d i rect ly or indirectly) by Developer,
Deve loper may convey the subdiv ided port ion of the Property contain ing
such Very Low Income and Low Income Un its to a single ent ity so owned
and so controlled by Deve loper (the "Affordable Housin g Owner") subject
to the Affordable Housing Agreement between C ity and Developer, and
this Agreement shall inure to the benefit of and be binding upon the
Affordable Housing Owner. Deve loper and Affordable Housing Owner
shall not convey fee title to such Very Low Income Un its or the Low
Income Un its to any other person or entity. Developer shall reimburse
City within ten (10) days after written demand (with an explanation of the
costs) for all costs incurred by City in evaluating the conveya nce to the
Affordable Housing Owner and any subsequent perm itted conveyance by
the Affordable Hous ing Owner.
3.3 No Other Separate Conveyance of Very Low Income Units and Low
Income Units. After the initia l conveyance by Deve loper to Affordable
Housing Owner of Very Low Income Un its and Low Income Units,
Developer and th e Affordable Housing Owner and their successors in
interest shall not convey their respect ive portions of the Property
sepa rately, but shall only convey them concurrently and to the same
purchaser, only to a purchaser reasonably approved in writing by City
(wh ich will cons ider the reputation and experience of the purchaser in
owning and operating affordable rental units). As a condition to the initial
conveyance by Developer to Affordable Housing Owne r of Very Low
Income Un its and Low Income Units, Developer and Affordable Housing
Owner shall execute, acknowledge and record (i) a separate agreement
(i.e., a covenant and agreement to hold property as one parcel} imposing
the forego i ng restriction on the Property, which shall be subject to the
written approval of City, and (ii) "condit ions, covenants and restrict ions" for
the Affordable Units and th e remainder of the Project ("CC&R's"), which
shall also be subject to the written approval of City. Such separate
agreement and GG&R's shall be sen ior to any and all deeds of trust and
other liens (except property taxes and assessments not yet due).
3.4 Release Upon Subsequent Transfe r. Upon the sale or transfer of
Developer's and Affo rdable Housing Owner's i nterests in the Property to a
single purchaser (or any such purchaser or subsequent purchaser's sale
of the entire Property), Developer and Affordab le Housing Owner, or any
such subsequent pu rchaser (as applicable), shall be released from its
obligations hereunder with respect to the Property subsequent to the
effective date of the sale or transfer, provided that the seller or transferor
(i) was not in breach of th is Agreement at the time of the sa le or transfer,
and (ii) prior to the sale or tra nsfe r , delivered to City a written assumption
agreement, duly executed by the purchaser or transferee and notarized by
a notary publ ic , whereby the purchaser exp ress ly assumes the obligations
-4-
12853-00 181204 4 326v1 .rloc 13
under this Agreement with respect to the Property. Failure to provide a
written assumption agreement hereunder shall not negate , modify or
otherwise affect the liability of the purchaser or transferee pursuant to this
Agreement. Nothing contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or transfer, except as
otherwise provided in this Agreement.
4 . Development of the Property. The following provi sions shall govern the
subdivision , development and use of the Property.
5.
4 .1 Permitted Uses. The permitted and conditionally permitted uses of the
Property shall be limited to those that are allowed by the Project App rova ls
and this Agreement.
4.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height
and size of buildings, that shall be app licab le to the Property are set forth
i n the Project Approva ls and this Agreement.
4.3 Building Standards. All construct ion on the Property shall adhere to all
City building codes in effect at the time the plan check or permit is
approved per Title 15 of the Moorpark Municipal Code and to any federal
or state bu ilding requ irements that are then in effect (collect ively "the
Building Codes").
4.4 Reservations and Dedications . All reservat ions and dedications of land fo r
publ ic purposes that are applicable to the Property are set forth in the
Project Approva ls and this Agreement.
Vesting of Development Rights.
5.1 Timing of Development. Developer shall comply with the Schedule of
Performance attached hereto as Schedule 1, subject to Excused Delays
(as defined in Section 10) and as amended from time to time and
approved in writing by the City Council.
No future amendment of any existi ng City ordinance or resolut ion , or
future adoption of any ord inance, resolution or other action, that pu rports
to limit the rate or tim ing of development over time or alter the sequencing
of development phases, whether adopted or imposed by the City Counci l
o r through the initiative or referendum process, shall apply to th e Property
provided the Property is developed in acco rdance with the Project
Approvals and this Agreement. Nothing in th is section shall be construed
to limit City's r ight to ensure that Deve loper timely provides all
i nfrastructure requ ired by the Project Approvals , Subsequent Approvals ,
and this Agreement.
12853·0018\2044326v 1 .doc
-5-14
5.2 Amendment of Project Approvals. No amendment of any of the Project
Approvals, whether adopted or approved by the City Council or through
the initiative or referendum process, shall app ly to any portion of the
Property, unless the Developer has agreed in writing to the amendment.
5.3 Issuance of Subsequent Approvals. Applications for land use approva l s,
entitlements and permits , i nc luding without l imitation subdivision maps
(!t..9.. tentative , vesting tentative, parcel, vesting parcel , and final maps),
subdivision im provement agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final planned development
permits , use permits, design review approvals (e.g . site plans,
architectural plans and landscaping plans), encroachment permits , and
sewer and water connections that are necessary to or desirable for the
development of the Project ( collectivel y "the Subsequent Approva ls";
individually "a Subsequent Approval") shall be consistent with the Project
Approvals and thi s Agreement. For purposes of this Agreement,
Subsequent Approva ls do not include building permits.
Subsequent Approvals shall be governed by the Project Approva ls and by
the applicable provisions of the Moorpark General Plan , the Moorpark
Municipal Code and other City ordinances, resolutions , rules, regu lations ,
pol ic ies, standards and requirements as most recent ly adopted or
approved by the City Council or through the initiative or referendum
process and in effect at the time that the application for the Subsequent
Approva l is deemed complete by City (collectively "City Laws"), except
City Laws that:
(a) change any permitted or conditionally perm itted uses of the
Property from what is allowed by the Project Approvals;
(b) limit or reduce the density or intensity of the Project, or any part
thereof, or otherwise require any reduct ion in the number of
proposed buildings or other improvements from what is allowed by
the Project Approvals.
(c) limit or control the rate, ti mi ng, phas ing or sequencing of the
approval , development or construct ion of all or any part of the
Pro ject in any manner, provided that all infrastructure required by
the Project Approvals to serve the portion of the Property covered
by the Subsequent Approval is in place or is schedu led to be in
place prior to completion of construct ion;
(d) are not un iformly applied on a City-wide basis to all substantially
simi lar types of development projects or to all propert ies with similar
land use designations;
( e) control residential rents;
12853-0018\2044326v1 .doc -6-15
6.
(f) proh ibit or regulate development on slopes with g rades greater than
20 percent, inc l ud ing withou t lim itation Moorpark Municipal Code
Chapter 17 .38 or any succes~or thereto, within the Property; or
(g) modi fy the land use from what is permitted by the City's Genera l
Plan Land Use Element at the Operat ive Date of th is Agreement or
that proh ibits or restricts the establishment or expansion of urban
services including but not limi ted to commun ity sewer systems to
the Project.
5.4 [INTENTIONALLY OMITTED]
5.5 Mod ification of Approvals. Throu ghou t the term of this Agreement,
Deve loper shall have the right , at its election and without ri sk to or waiver
of any right that is vested in it pursuant to this sect io n , to apply to City fo r
modifications to Project App rova ls and Subsequent Approvals . The
app roval or conditiona l approval of any such modifi catio n shall not require
an amendment to th is Agreement, provided that, in addition to any other
find ing s that may be requ ired in order to approve or cond itionally approve
the modification, a finding is made that the modification is consistent wi th
this Agreement and does not a lter the permitted uses, density, intensity,
max imum height, size of buildings or reservatio ns and dedications as
conta ined in the Project Approvals.
5.6 Issuance of Building Permits. No Build ing Permit shall be unreasonably
withhe ld or delayed from Developer. In addit ion, no Final Building Permit
final inspection o r Certificate of Occupancy will be unreasonably withheld
or delayed from Deve loper if all infrastructure requ ired by the Project
Approva ls, Subsequent Approvals, and this Agreement to serve the
portion of the Property covered by the Fi nal Bui lding Perm it is in place or
is schedu led to be in place prior to completion of construction and all of
the other re levant provis io ns of the Project Approvals , Subsequent
App rovals and this Agreement have been satisfie d. Consistent with
section 5.1 of th i s Agreement, in no event shall build ing permits be
allocated on any annua l numerical basis o r on any arbitrary allocation
bas i s.
Developer Agreements. Note: Certain fees payable by Deve lopment under this
Section 6 are also set forth and cross-referenced on Schedu le 2 attached hereto.
6.1 Deve lopment as a Residential Project. Developer shall co mply with (i) this
Agreement, (ii) the Project Approvals , (iii ) all Subsequent Approvals for
wh ich ii was the applicant or a successor in interest to the applicant and
(iv) the MMRP of th e MND and any subsequent o r supp lemental
environmenta l actions. Developer agrees not to app ly for any non-
resident ial uses on the Property. The clubhouse and leasing offices are
cons idered to be part of the residential uses.
-7 -
12853,00 18\2044326v1 .doc 16
6.2 Condit ion of Dedicated or Conveyed Property. All lands and interests in
land dedicated to City shall be free and clea r of liens and encumbrances
other than easements or rest rictions that do not prec lude or interfere with
use of the land or interest for its intended pu rpose, as reasonably
determined by City.
6.3 Develop ment Fee Per Unit. As a condition of the issuance of a bu ild ing
pe rmit for eac h residentia l un it with in the boundaries of the Property,
Deve loper shall pay Cit y a one-time deve lopment fee as described herein
{the "Deve lopment Fee "). The Deve lopment Fee may be expended by
City in its sole and unfettered di scretion. The amount of the Deve lopment
Fee shall be Eight Thousand Fo ur Hundred Dolla rs ($8,400.00) pe r
res idential unit. If not pa id by January 1, 2019, the fee shall be adjusted
annually commenc ing January 1, 2019 by the larger increase of a) orb) as
follows:
(a) T he Consumer Price Index (CPI) inc rease shall be determined by
using the information provided by the U.S. Department of Labor,
Bu rea u of Labo r Stat istics, for all urban consume rs within the Los
Angeles /Riverside/Orange County metropo litan area during the
prior yea r. The ca lculat ion shall be made us ing the month of
Octobe r over the prior October.
(b) The ca lcu lat ion shall be made to reflect the change in the Ca ltrans
Highway Bid Price Index fo r Se lected Cal ifornia Construction Items
for the twe lve (12) month period avai lable on Decembe r 31 of the
precedi ng year.
In the event there is a decrease in both of the referenced Indices for any
annua l index ing, the Deve lopment Fee shall remain at its then current
amount until such time as the next subsequent annual index ing wh ich
resu lts in an increase .
6.4 Traffic Mitigat ion Fee. As a cond ition of the issuance of building perm it for
each res idential use w ithin the boun daries of the Pro perty, Developer shall
pay City a one -time traffic mitigation fee as described herein ("C itywide
T raffic Fee"). The Citywide Traffic Fee may be ex pended by Cit y in its
so le and unfettered discretion . The amount of the Citywide T raffic Fee
shall be Eight Thousand Five Hundred Twenty-seven Dollars ($8,527.00)
per resident ial unit. If not paid by January 1, 2019, then on January 1,
2019, and annually the reafter unti l pa id, the contri but ion a mount shall be
increased to reflect the change in the Caltrans Highway Bid Price Index for
Selected California Construction Items for the twe lve (12) month pe riod
available on Decembe r 31 of the preceding year ("annua l indexing"). In the
event the re is a decrease in th e referenced Inde x for any annual i ndexing,
the current amount of the fee shall remain until such time as the next
subsequent annual index ing which resu lts in an increase.
-8-
1285~0018\2044326v1.d<x; 17
6.5 [INTENT IONALLY OMITTED.]
6.6 Process i ng Fees . On the Operat ive Date (defined in Section 1.6 above),
Developer shall pay all outstanding City process ing costs related to
preparation of this Agreement, the Project Approva ls, the MND.
6. 7 Park Fees. Prior to the issuance of the bui ld ing permit for each res ident ial
dwelling unit within the Property, Developer shall pay a one-time fee in lieu
of the ded ication of park land and related improvements ("Park Fee"). The
amount of the Park Fee shall be Eight Thousand Four Hundred Dollars
($8,400.00) for each residential dwelling un it within the Property. If the
Park Fee is not paid by January 1, 2019, the Park Fee shall be adjusted
annually commenc ing January 1, 2019 by the larger increase of a) or b) as
follows:
(a) The CPI increase shall be determined by using the information
prov ided by the U.S. Department of Labor, Bureau of Labor
Statistics. for all urban consumers within the Los
Ange les/R iverside/Orange County metropolitan area during the
prior year. The calculat ion shall be made using the month of
October over the prio r October.
(b) The ca lculat ion shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected Cal iforn ia Const ruction Ite ms
for the twelve (12) mo nth period ava ilable on December 31 of the
preceding year.
In the event there is a dec rease in both of the referenced Indices for any
annual indexing, the Park Fee shall remain at its then current amount until
such time as the next subsequent an nual index ing wh ich results in an
increase.
Developer agrees that the above-desc ri bed payments shall be deemed to
sat isfy the parkland dedication requ irement set forth at California
Government Code Section 66477 et seq. fo r the Property. Developer also
unde rstands that because the above-described payments shall be
deemed to satisfy applicab le park land dedication requirements, a public
trail through the Property shall not be required.
6.8 [I NTENTIONA LLY OMITT ED.]
6 .9 Densities Allowed fo r Deve lopment. Developer agrees that dens ities
vested and i ncentives and concess ions rece ived in the Project Approvals
include all densi ties ava ilable as density bonuses and all incentives and
concessions to which Developer is entitled under the Moorpark Municipal
Code, Government Code Sect ions 659 15 th rough 659 17 .5 or both;
Developer shall not be entitled to further density bonuses or incentives or
concess ions and further agrees, in cons ideration for the dens ity bonus
-9-
12853-0018\2044326"1 .doc 18
obta ined through the Project Approva ls that is greater than wou ld
otherwise be available, to : (i) execute, acknow ledge and record against
the Property an Affordab le Housing Agreement in the form attached
hereto as Exhibit F substantially concurrently with the recording of th is
Agreement and ensure that the Affordable Housing Agreement is not
subject or subord inate to any l iens (except for property taxes and
assessments not yet due); and (ii) comply with the terms thereof, wh ich
are incorpo rated here in by reference , during the term of this Agreement
( after which the Affordable Housing Agreement shall remain in effect fo r its
stated term). Residentia l Planned Development Permit No. 2012-02,
inc luding the special conditions that i ncorporate and inc l ude all of the
requi rements set forth in the Affordable Housing Agreement are part of the
Project conditions of approva l and not merely cont ractual in nature.
6.10 Affordable Unit Priority Leasing. Developer agrees to the greatest extent
permitted by state and federal law to grant priority to the Affordab le Units
to e ligible City of Moorpark res idents to the extent it does not (i) jeopardize
Deve loper's rights pursuant to this Agreement or the Project Approvals, or
(ii) jeopardize or materially affect any City-issued bond financ in g fo r the
Project obtained by Developer.
6.11 Bond Issuance Costs . In the event City issues bonds to provide any
financing for the Project, Deve loper shall pay an in itial issuer fee to City of
Fifty Thousand Dollars ($50,000.00). The fee shall be paid upon funding
of the City-issued bond financing. Deve loper agrees that City may at its
so le discret ion select the bond counsel, financ ial adviso r and other
professional service providers deemed necessary and appropriate by
Deve lo per that City deems necessary to effectuate City-issu ed bo nd
financing. Developer further agrees to fund all costs actually incurred by
City in connection with such City-issued bond financing by providing City
with depos its fo r all such bond financing related costs not cont in gent on
the sale of bonds. In add ition, Developer will pay for all city attorney and
city staff time at appl icable rates. W ith the exception of city staff costs, all
other costs including, but not li mited to out of pocket and professional
services costs shall have City overhead expense of fifteen percent (15%)
added to said costs. If the City does not act as the issuer of bonds, the
City shall coope rate i n good fa ith with the issuance of bonds for the
Project by others, inc luding, but not limited to , holding a TEFRA hearing at
a ti me reasonably approved by the City Manager; however, Developer
shall reimburse City with in ten (10) business days after written demand for
all costs actually incurred by City in connection therewith, including City
staff and City attorney ti me , and th e ove rhead markup described above fo r
other costs. If the City does not act as the issue r of the bonds , Developer
shall pay a fee of Fifty Thousand Dollars ($50,000.00) to City for its
coope ration with the issuance of Bonds for the Project by others, upon the
fund ing of the bond financi ng; in addition , any costs incu rred by City in
-10-
12853-0018\2044326"1.doc 19
connection with such cooperation shall be reimbursed /paid by Developer
in accordance with the preceding provi sions of this parag raph .
6.12 Air Quality Fees. Deve loper agrees that the Mitigation Measures included
in the City Counci l approved MND and MMRP , or subsequent
env ironmental c learance document approved by the Council, set forth the
mitigation requirements for a ir qua lity impacts. Deve loper agrees to pay to
City a one -time (not annual) air qual ity mitigation fee, as described herein
("A ir Quality Fee "), in satisfaction of the Transportation Demand
Management Fund mitigation requirement for the Project. The Air Qual ity
Fee may be expended by Ci ty in its sole discretion for reduction of
regiona l air pollution emissions and to mitigate residua l Project air qual ity
impacts.
The Air Quality Fee shall be One Thousand Two Hundred Thirty and
No/100 Dollars ($1,230.00) per resident ial unit to be pa id prior to the
issuance of the building perm it for the first residentia l building in RPO
2012-02. If the Air Quality Fee is not paid by January 1, 2019, then
commenc ing on January 1, 2019, and annually thereafter, the Air Qual ity
Fee shall be adj usted by any increase in the Consu mer Price Index (CPI)
until all fees have been paid. The CPI increase shall be determined by
using the information provided by the U.S . Department of Labor, Bureau of
Labor Statistics, for all urban consumers with in the Los
Ange les/R iverside/Orange County metropolitan area during the prior year .
The calculation shall be made using the month of December over the prior
month of December. In the event there is a decrease in the CPI for any
annua l indexi ng, the fee shall remain at its then current amount until such
time as the next subsequent annual indexing wh ich results in an increase.
6.13 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a)
Deve loper shall pay the City a Five T housand Dollar ($5,000) Assessment
District Format ion Fee; and (b) either two Assessment Districts (one fully
funded and a second "back-up" district) or one Assessment D istrict
conta ining two zones (one zone to be fully funded and the othe r to be a
back up zone), as determined by the City at the City's discretion, shall be
formed that includes the Property. The first District out of the two Districts
or the first zone of the one District, whichever is applicable, shall be for the
purposes of fund ing future costs fo r the ma intenance landscaping and
irrigation of the landscaped area above the retain ing wall along the
southern perimeter of the Property and the maintenance of the storm
water quality basin and drainage improvements, including basin
landscaping and irrigation . The second District or second zone of the
District, wh i chever is app licable, shall be for the maintenance of parkway
landscaping on Casey Road and Walnut Canyon Road and Project slopes
adjacent to the Walnut Canyon School, the maintenance of the storm
water basin access drive and the emerge ncy access dri ve. It shall be the
-11 -
12853-0018\2044326v1.doc 20
intent of the City to approve the required assessment each year, but to
only levy that portion of the assessment necessary to recover any past
City costs or any anticipated City costs for the that fiscal year. The City
shall administer the annual renewal of the Assessment D istrict or Districts,
and any costs related to such administration shall be charged to the fund
established for such Assessment Di strict revenues and expenses.
Developer agrees to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as appl icable, and
for annual increases in the assessments thereunder, for the purposes
specified in this subsection. Developer hereby waives any right it may
have to contest or protest any such assessments or assessment
incre ases. In the event that any such Assessment District has insufficient
funds for its purposes, then Developer shall pay the funds requ ired to the
Assessment D istrict within five (5) business days afte r written demand
from the Assessment District from time to ti me. Developer also agrees to
add this language to any Regulatory Ag reement as part of the sale of any
bonds issued by the City for thi s Project.
6.14 Other Development and Processing Fees. In addition to fees specifically
mentioned in this Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the rate and amount in
effect at the time the fee is required to be pa id. Said fees include but are
not l imited to Library Faci lities Fees, Police Facilities Fees, Fire Facili ties
Fees, drainage, entitlement processing fees, and plan check and perm it
fees for bu ildi ngs and public improvements. Developer furthe r agrees that
unless specifically exempted by this Agreement, it is subject to all fees
imposed by City at the Operative Date of th is Agreement and such future
fees i mposed as determined by City in its sole discretion so long as such
fees are imposed on projects s imilar to the Project or on property similar to
the Property. ·
6.15 AOC Fees. If paid prio r to January 1, 2020, Deve loper shall pay the Los
Angeles Avenue Area of Contributio n (AOC) fee in effect at the time of
project approval for each re sidential un it in a bu ilding prior to the i ssuance
of the bu ilding permit for that res idential buildi ng within the Project,
consistent with City Resolut ion No. 2014-3336. If paid on or after January
1, 2020, Deve loper shall pay the Los Angeles Avenue Area of Contribution
(AOC) fee in effect at the time of build in g permit issuance.
Developer shall pay the Gabbert Road/Casey Road Area of Contrib utio n
fees , if any, in effect at the ti me of building permit issuance for each
residential unit in a building prior to the issuance of the bui lding permit for
that residentia l build in g within the Project.
6.16 Street Improvement Standards. The street improvements for all streets
schedu led fo r dedication to the City shall be des igned and constructed by
Developer to provide for a 50-year life as determined by the City Engineer.
-12-
12853-00 1812044326v 1 .doc 21
6 .17 Fee Protest Wa iver. Deve loper agrees that any fees and payments
pursuant to this Agreement and for RPO 2012 -02 shall be made without
reservat ion , and Developer e xpressly waives the right to payment of any
such fees under protest pursuant to Cali forn ia Governmen t Code Section
66020 and statutes amenda tory or supplementary thereto. Deve loper
furthe r agrees th at the fees it has agreed to pay pursuant to Section 6.3 of
th is Agreement a re not pub li c i mprovement fees collected pursuant to
Government Code Section 66006 and statutes amend atory or
supplementary thereto .
6.18 Annual Review Procedures. Developer agrees to comply with Sect ion
15.40.150 of the Moorpark Municipa l Code and any prov ision amendatory
or supplementary thereto for annual review of th is Agreement and further
agrees that the annual review shall inc lud e evaluat ion of its compl iance
with the approved MND and MMRP.
6 .19 Art in Publ ic Places Fee. Developer agrees to pay the Art in Publ ic Places
Fee i n effect at the time of build ing pe rmit i ssuance for each bui lding prior
to the issuance of the building perm it for that residential building within the
Project consistent w ith City Resolut ion No . 2005-2408 {1 .0 percent of total
build ing valuations e xclud ing land value and off-site improvement costs).
6.20 Eminent Doma i n. Developer agrees that any e lection to acquire property
by em inent domain shall be at City's sole di scretion, and only after
compliance with all legally requ ired procedures including but not limited to
a hearing on a proposed resolution of necess ity.
6.21 [IN TENTIONALLY OMITTED]
6.22 CPI Indexes. In the event the "CPI " referred to in Sections 6.3, 6. 7 or 6.12
above or Sections 6 .24 o r 7.18 below, or the "refe renced Index" referred to
in Sectio n 6.4 above are d iscontinued or revised , a successor index with
wh ich the "CPI " and or "referenced Index" are replaced shall be used i n
order to obtain substantially the same result as would otherwise have
been obtained if either or both the "CPI " and "referenced Index" had not
been discontinued o r revised.
6.23 Conveyance to City of City Site: Ut ility and Construction Easements. The
Developer agrees to convey to City the site (here inafter re ferred to as the
"City Site") as shown in Exhibit "B" pursuant t o the Pu rchase and Sale
Agreement attached he reto as Exhibit "C" (the "Purchase and Sale
Agreeme nt") subject to the utility easement described in Ex hib it "G ".
Deve loper shall execute and del iver the Purchase and Sa le Agreement
concurre ntly wi th its execution and de livery of this Agreement and upon
delivery to Deve loper of a copy thereof executed by the City , Deve loper
shall comp ly with the Purchase and Sale Agreement.
-13-
12853-0018\2044.J26v 1 .doc 22
If at any ti me the City Manager determines that a const ruct ion easement
fo r the City is necessary within the slope on the southerly fifteen ( 15) feet
of the Property for purposes of improving the C ity Site and City Manager
requests such an easement in writing, then Develope r shall grant a
construction easement to City which shall expire five (5) years after the
last Certificate of Occupancy is issued (and the C ity Manager is hereby
authorized to execute a Cert ificate of Acceptance for such easement).
6.24 Flood Control Channel Imp rovements and Property Line Improvements.
Developer agrees to enclose the flood control channel located on the
eastern portion of the Project as shown on the approved Project Sit e Plan
to connect to the enclosed portion of the channel on the City Site to the
satisfaction of the City Engineer/Public Works Director and the Ventura
County Watershed Protection District. Developer shall be responsible for
any aesthetic or landscape imp rovements over and around the channel as
required by Ventura County Watershed Protection D istrict and as part of
the Project Approvals. Deve loper further agrees to construct retaining
walls (made of slumpstone, not precis ion blocks) with a color approved by
the Community Development Director in good faith and landscapi ng along
the southerly property line as shown on the Project Site Plan as approved
and conditioned by the City Counci l Resolution approving Residential
Planned Develop ment Permit No. 20 12-02 to the satisfaction of the
Community Development Director.
6.25 High Street Improvement s. Deve loper agrees, prior to issuance of t he first
building permit for the first residential building, within the Project to
improve High Street within it s existing right-of-way from its intersection
with Moorpark Avenue up to the point of the temporary fire access to the
extent requi red by Ventura County F ire Department, and the City Engineer
in accordance with the approved S ite P lan for the Project, for emergency
secondary access to the Project. In no event shall Developer be required
to acquire any property in order to fulfill this obligation .
6.26 Power Pole Relocation Costs and Fees. Per the Real Property Acqu isit ion
Agreement between City and Essex app roved by the City Council on
March 18, 2009 , City paid for a private ut ility consultant (BJ Palmer &
Assoc iates) to redesign (Revised Plan) the Ed ison 66kV Essex Pole
Relocation Plan (Essex Plan) in order to plan for the relocation of the
exist ing poles. The Real Property Acquisition Agreement also called for
C ity to pay for installation of any poles or guy poles requ ired in addition to
those shown on the Essex Plan. Deve loper had agreed to pay for the
relocation of the existing 66 KV overhead power li nes as shown on the
Essex Plan under the Real Property Acqu isition Agreement. Developer
now ag rees that the relocation of the existing po les as shown in the
Rev ised Plan contained in Exhib it "D" does not requ ire any additional
poles or guy poles from those shown on the Essex Plan , and that City is
not obligated to pay any furthe r costs under the Rea l Property Acqu isition
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12853-001812044326v1 .doc 23
Agreement. However, Deve loper furthe r agrees to pay $400,000 to City
prio r to issuance of the certificate of occupancy for the first resident ial
build ing , to be used by Cit y in its sole and unfettered discretion, due to the
power po les in the Revised Plan l imiting full util ity and use of City property.
6.27 Requ ired Tenant and Guest Park ing. Deve loper agrees to provide a tota l
of at least 2.00 parking spaces per unit on site. Two pa rking spaces shall
be des ignated and reserved fo r each of the 2-bedroom and 3-bedroom
units, and one space shall be designated and reserved for each of the 1-
bedroom un its , with the remainde r of the spaces ava ilable for guest
park ing. At least one of the parking spaces des ignated and reserved for
each of the units shall be in a ga rage o r covered carport. There shall be
no extra charges for requ ired parking for any units (whether o r not they
are Affordable Units). Deve loper shall only be required to prov ide ninety-
four (94) guest parking spaces .
6 .28 [INTENTIONALLY OMITTED)
6.29 Restoration of City Site. Prior to the i ssua nce of a grad ing penmit by City
for the Property, Developer shall provide reasonable evidence satisfactory
to the City Eng ineer/Pub li c Works Director and the Director of Community
Development of the amount of stoc kpi led dirt placed onto the City Site
prior to January 1, 2017; such amount shall be the maximum amount of
d i rt that may be removed from the City Site fo r placement on the Property.
Developer shall, prior to the conveyance of the City Site to City and as a
condition to issuance of the Certificate of Occupancy for the last build ing
with in the Project, and consistent with Section 7.10 of this Agreement,
restore the City Site to a reasonable condition, free of Developer's
construction debris, piles of construction related dirt and all other
construction material deposited or stockpiled by Develope r to the
satisfaction of the City E ngineer and Commun ity Development Director.
The elevation of the City Site must be restored to the level prio r to the
Deve loper's use of the City Site for Deve loper's stockpi lin g of construction
dirt and material (except fo r graded access and the stonm water quality
basin, which shall be at the e levations required by the Project Approva ls)
to the satisfaction of the City Engineer/Publ ic Works Di rector and the
Com m unity Deve lopment Director.
6.30 [IN TENTIONA LLY OMITTED]
6.31 Prior Development Agreement and Residential Planned Development
Perm it. Developer agrees that the previous Development Agreement No.
2004 -03 fo r the Property, approved by the City Council on July 18, 2007
by Ord inance No. 355, did not take effect and was not reco rded because
the Developer di d not execute it. Deve loper further ag rees that by the
enabl ing ordinance approving this new Agreement, the City's previous
approva l of Development Agre ement No. 2004-03 pu rsuant to Ordinance
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12853,0018\2044326\/1 .dO<: 24
No. 355 is resc inded and that rescIss1on will take effect upon the
Operative Date. Developer further agrees that the approval of Residential
P lanned Development Permit No. 2004-06 for the Property, approved by
the City Council on July 18, 2007 by Resolution No . 2007-2612 , had
expi red due to lack of Project inauguration by Developer.
6.32 [INTENTIONALLY OMITTED]
6.33 [INTENTIONALLY OM ITTED]
6.34 City Abi lity to Modify. Developer acknowl edges the City's ability to modify
the development standards and to change the General Plan designation
and zoning of the Property upon the termination or expirat ion of this
Agreement (if the Project has not been built), and Deve loper hereby
waives any rights they might otherwise have to seek judicial review of
such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of
permitted development to that in existence prior to the approval of General
Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Change No.
2004-04 ("ZC 2004-04").
6.35 Annual Community Services Fee. Commencing upon issuance of a
Zoni ng Clearance by the City for occupancy of the fi rst unit of the Project,
and on each anniversary thereof, Affordable Housing Owner shall pay to
City a community services fee equal to Eight Thousand Dollars
($8,000.00) increased by two percent (2%) on each anniversary of the
Operative Date. (This fee is the same fee as is included in the Affordable
Housing Agreement.)
6.36 Indemnity. Developer will defend, indemnify and hold City harmless from
and against any and all c laims, liabi lities, losses, damages, costs and
expenses arising from any activity by Developer or its contractors on the
C ity Site.
6.37 Storm Water/Floo d Determination Basin Ob l igations. Deve loper shall fu lfill
its obligations under Section 7.18.
6 .38 Status of Real Property Acqu isition Agreement. Developer hereby
stipulates and agrees that all of the obligations of the City under that
certain Real Property Acquisition Agreement dated March 31, 2009 (the
"Portfolio Agreement") between the C ity and Essex Portfolio, L.P. have
been satisfied. Developer shall defend, indemnify and hold City harmless
from and against any and all cla i ms by Essex Portfolio, L.P.: (i) that the
foregoing is not correct; or (i i) under or with respect to the Portfolio
Agreement.
6 .39 Well Si te Deed. Concurrently w ith its execution and del ivery to City of this
Agreement, Developer shall execute , cause to be duly acknowledged and
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12853-0018\2044326v1 .doc 25
7.
deliver to City an original of a Grant Deed in the form attached hereto as
Exhibit "I" conveying the so -called "well site" to City.
City Agreements.
7.1 Commitment of Resources. At Deve loper's expense, City shall commit
reasonab le time and resources of City staff to work with Deve loper on the
expedited and paralle l processing of appl ica ti ons for Project Approvals
and all Subsequent Approvals and Building Permits for the Project area
and if requested in writi ng by Developer shall use overtim e and
independent contractors whenever possible . City shall process an air
r ights subd ivis io n separating the sixteen (16) Very Low Income Units and
the twenty-four (24) Low Income Un its requ ired by the Affordable Housing
Agreement so that they can be conveyed to the Affordable Ho using Owner
pursuant to the aforementioned map (but no other subdivision maps) upon
receipt of a complete appl ication from Developer. Developer shall assume
any r isk related to, and shall pay the additiona l costs incurred by City for,
any expedited and paralle l processing . City shall also commit reasonable
ti me and resources of City staff to work with the Ventura County Water
Protection District for the processing and permitting of the plans for the
undergrounding of the channe l.
7.2 Easement Acqu isitions. If requested in writi ng by Deve loper and limited to
City's legal authority, City at its sole and abso lute discretion shall proceed
to acquire, at Developer's sole cost and expense, easements or fee title to
land in wh ich Deve loper does not have title or interest in order to allow
construction of public improvements required of Deve loper including any
land which is outside C ity's legal boundaries. The process shall generally
follow Government Code Section 66462.5 et seq. and shall include the
obligation of Developer to enter into an agreement with City, guaranteed
by cash deposits and other security as the City may require, to pay all City
costs including but not limited to, acquisition of the interest, attorney fees,
apprai sal fees , eng i nee ri ng fees , City staff costs, and City overhead
expenses of fifteen percent (15%) on all out-of-pocket costs.
7.3 [INTENT IONALLY OMITTED]
7.4 Concurrent Entitlement Processing. City agrees that wheneve r possible as
determined by City in its sole discretion to process concurrently all land
use entitlements fo r the Project so long as the appl ication for such
entitlements are "deemed complete" in compliance with the requi rements
of Chapter 4.5 Review and approval of Development Projects (Permit
Streamlining Act) of the California Government Code.
7.5 Park Fees . City agrees that the Park Fee requi red under Section 6 .7 of
this Agreement meets all of Developer's obligation for park land dedication
provis ions of state law and City codes .
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12853-00 t8\2044326vt .doc 26
7.6 [INTENTIONALLY OMITTED]
7.7 Reimburs e m ents from other Developments. City shall faci litate the
reimbursement to Developer of any costs i ncurred by Developer that may
be subject t o partial reim bursement from other developers as a condition
of approva l of a tract map, development penmit o r development agreement
with one or more other developers and at City's discretion may in clude
provisions requ i ring such re imbursement to Developer for the same i n
such other development p roject conditions of approval.
7.8 [INTENTIONALLY OMITTED]
7.9 Acquisition by City of City S ite. Provided Developer shall have duly
executed and delivered the Purchase and Sale Agreement to City, City
sh all enter into the Purchase and Sale Agreement to acquire the C ity Site.
7.10 Developer/City Use of City Site for Stockpiling Dirt. Developer may
reasonably stockpile co n st ru ction dirt and materials on the City S ite during
construction of the Project, subject to Section 6.29. Upon execution of the
Purchase Agreement, Developer shall grant an easement t o City pursuant
to the Easement Agreement in the fomn and substance attached as
Exhibit "C" to the Purchase Agreement pursuant to which C ity shall h ave
access to the (approximately) two (2) acres of the City Site on the
southeastern portion of the City S ite, adjacent to the existing High Street
improvements and otherwise at a location reasonably acceptable to City
more particularly described in the Easement Agreement, on which the City
may stockpile dirt p rior to the conveyance of the C ity S ite to the City, and
i n connection therewith, City shall comply with Section 2.2 of the Purchase
and Sale Agreement and the Easement Agreement. The City agrees to
fence the approxi mately two (2) acre site to separate it from the balance of
the City Site. Prior to issuance of the first b u ild i ng permit for the Property,
the portion of the City S ite used by Developer under the first sentence of
this Section 7.10 shall be restored by Developer to a reasonab le condition,
free of Developer's construction debris, p i les of dirt and all other
construction-related material deposited o r stockpiled by Developer, and to
its elevation level that exi sted prior to Developer's stockpiling of d irt a nd
material, all to the satisfaction of the City Engineer/Public Works Director
and Community Development Director.
7.11 Parking Requirements for Tenants and Guests. The parki ng req ui rements
shall be as set forth in Section 6.27 above.
7.12 Art in Public Places Fee. City agrees that the Art in Public Places Fee
required under Section 6.19 of this Agreement meets all of Developer's
obligation for Art in Public P laces provisions of City codes and resolutions.
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1285J-0018\2044326v 1.doc 27
7.13 Bond Financ ing. Cit y acknowledges Developer may want to use City-
i ssued bond financing for the Proj ect. If City, at its so le and absolute
d iscretion, authorizes such bond financing, then City agrees to use good
fa ith efforts to accommodate any request by Deve lo per for an inducement
resolution allowing the use by Developer of City-issued bond financing for
the Project . City shall also comp ly with its obligations under Sect ion 6.11
above.
7.14 [INTENT IONALLY OMITTED)
7.15 Grant Fund ing Assistance. City shall use good faith efforts, at no cost to
City, to assist Developer in obtai ning public grants, loans, or other pub l ic
assistance from pub lic agencies othe r than the City, including, but not
li mited to Metrolink, but only if assisti ng Developer i n obtain ing such funds
does not directly or indirectly financially bu rd en City.
7 .16 [IN TENTIO NAL LY OMITTE D)
7.17 Power Pole Relocation. City agrees to accept re location of the Ed ison
66kV power poles on City Property cons istent with the Revised Plan
discussed in Section 6.26 and attached hereto as Exhibit "D ".
7.1 8 Storm Water/Flood Detention Basin. City agrees that Deve loper may use
the storm water/flood detention basin located on the City Property and
de picted on Exhi bit "H" for storm water/retention purposes for the Project,
and City shall execute and deliver a revocable license agreement to
Developer to that affect; however, City may elect by written notice to
Developer to relocate said detention basin and any service road and
secondary access road located on the City Property at any time, and
Developer shall reimburse or pay City for the costs of such relocation
with i n ten (10) business days after written demand from City from time to
ti me describing such costs. Developer shall promptly provide a bond
acceptable to City in the amount of such costs, as projected in good faith
by City, to ensure payment of the costs, and every two (2) years the
amount of the bond shall be increased (by amendment or by a
replacement bond) by the percentage increase over the app licab le two
year period in the Caltrans Highway Bid Price Index for Sel ected Ca lifornia
Construction Items, as determined in good faith by the City Manager.
7 .19 Extens ion of High Street. City agrees that Developer shall not be requ i red
to make any improvements related to the extension of High Street except
as necessary to meet Ventura County Fire Protection District requ irements
fo r the provis ion of secondary emergency access to the Property.
7.20 Prior Deve lopment Ag reement and Residential P lanned Development
Perm it. City agrees that the previous Development Agreement No. 2004-
03 for the Property, approved by the City Council on July 18 , 2007 by
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12853-0018\2044326v 1 .doc 28
Ord inance No. 355, never was executed , as Deve loper never had signed
the previous Deve lopment Agreement No. 2004-03 , and that the enabling
ord inance fo r previous Deve lopment Agreement No. 2004-03 (Ord inance
No. 355) is rescinded upon the Operative Date. City further agrees that
the app roval of Residential Planned Deve lopment Permit No. 2004-06 for
the Property, approved by the City Counci l on July 18, 2007 by Resolution
No . 2007-2612 , had expired due to lac k of Project inauguration by
Deve loper.
8 . Supersession of Agreement by Change of Law . In the event that any state or
federa l law or regulation e nacted after the date the Enabling Ordinance was
adopted by the City Counc i l prevents or precludes compl iance with any provis io n
of the Ag ree ment, such provision shall be deemed mod ified or suspended to
comp ly with such state or federa l law or regulat ion, as reasonab ly determi ned
necessary by City .
9. Demonstration of Good Faith Compliance . In order to ascertain co mpliance by
Developer with the provisions of thi s Agreement, the Agreement shall be
reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40.
of City or any successor thereof then in effect. The failure of City to conduct any
such annual review shall not, in any manner, constitute a breach of th is
Agreement by City, dim inish, i mpede, or abrogate the obligations of Deve loper
hereunder or rende r this Agreement invalid o r void. At the sa me time as the
referenced annual review, City shall also review Deve loper's compliance with the
MMRP.
10. Autho ri zed Delays. Performance by any Party of its obligations hereunder, other
than payment of fees , shall be excused during any period of "Excusab le Delay",
as here in after defined, provided that the Party claiming the delay gives written
notice of the delay to the other Part ies as soon as possible after the same has
been ascertained. Fo r purposes hereof, Excusab le Delay shall mean delay that
d i rectly affects, and is beyond the rea sonable control of, the Party clai ming th e
delay, inc luding without limitat ion: (a) act of God ; (b) civil commotion; (c) riot; (d)
strike, picket i ng or other labor dispute; (e) shortage of materia ls or suppl ies ; (f)
damage to work in progress by reason of fi re, flood, earthquake or other
casua lty; (g) failure, delay or inabil ity of City to prov ide adequate levels of publ ic
services , facilities or infrastructure to the Property including, by way of example
only, the lack of water to serve any port ion of the Property due to drought; (h)
delay caused by a delay by othe r third party ent ities wh ich are requ ired to
approve plans or documents for Develope r to construct the Project, o r restrictions
imposed or mandated by such ot her third party entities or governmental entiti es
other than City, (includ i ng but not limited to , Ventura County Watershed
Protection District); or (i) litigation brought by a third party attacking the validity of
th is Agreement, a Project Approva l, a Subsequent Approval or any other act ion
necessary fo r deve lopment of the Project .
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I 2853,0018\2044326v 1 .doc 29
11 . Default Provisions.
11.1 Default by Developer. The Developer shall be deemed to have breached
th is Agreement if it:
(a) practices, or attempts to practice, any fraud or deceit upon City; o r
wi llfully violates any order, ru ling or decision of any regulatory or
judicial body having j uris diction over the Property or the Project,
provided that Develope r may contest any such order, ruling or
decision by app rop riate proceeding s conducted in good faith, in
whic h event no breach of this Agreement shall be deemed to have
occurred unless and until the re i s a fina l ad j udication adverse to
Developer; or
(b) fai ls to make any payments required under th is Agree ment with in
five (5) business days afte r City gives written not ice to Develope r
that the same is due and payable; or
(c) breaches any of the other provis ions of this Agreement and fai ls to
cure the same within thirty (30) days after City gives written not ice
t o Deve loper of such breach (or, if the breach is not able to be
cured wi thin such thirty (30) day period, Develope r fails to start to
cure the same with i n th irty (30) days after delivery of written notice
by City of such breach or fails to the reafter diligentl y prosecute the
cure to completion).
11 .2 Default by City. City shall be in breach of this Agreement if it breaches
any of the provisions of this Agreement and fails to cure the breach within
th i rty (30) days after Developer gives written notice to City of the breach
(or, if the breach is not able to be cured within such thirty (30) day period,
City fails to start to cure the same within thirty (30) days after delivery of
written notice from Developer of such breach or fails to thereafte r diligentl y
prosecute the cure to completion).
11.3 Content of Notice of Violation. Eve ry notice of breac h shall state with
spec ificity that it is given pursuant to this sect ion of th is Agreement, the
nature of the alleged breach, and the manne r in wh ich the breach may be
satisfactori ly cured. Every not ice shall state the appl icab le period to cure.
The not ices shall be given in accordance with Section 20 he reof.
11.4 Remed ies for Breach. Each party shall have any and all remedies for
breach of this Ag ree ment that may be avai lable under applicable law.
Additionally, the Parti es acknow ledge that remed ies at law, including
without lim itation monetary damages, wou ld be inadequate for breach of
this Agreement by any Party due to the size , nature and scope of the
Project. The Parties also acknowledge that it would not be feasible or
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12853-00 1812044326v1 .doc 30
possib le to restore the Property to its natu ral condition once
implementation of this Ag reement has begun .
Consequently, the remedies for breach of th is Ag reement by e ither party
shall inc lude injunctive re lief a nd/or specific performance.
In addition, if Developer is i n default under this Agreement , City shall have
the ri ght to withhold the issuance of building perm its to Developer from the
date that the notice of violation was given pursuant to Section 11.3 hereof
until the date that the breach is cu red as prov ided in the noti ce of violation.
12 . Mortgage Protection. If City g ives notice to Developer of a breach, City shall
send a copy of the notice to each ho lder of record of any deed of trust on the
portion of the Property in wh ich Developer has a lega l interest ("Financier"),
provided that the Financier has g i ven prior written notice of its name and mailing
address to City and the not ice makes specific reference to th is section. The
copies shall be sent by United States mail, registered or certified , postage
prepaid, ret urn rece ipt requested, and shall be deemed received upon the third
(3rd) day after depos it.
Each Financie r that has given prior not ice to City pursuant to this section shall
have the right, at its option and insofar as th e rights of City are concerned, to
cure any such breach within eighteen (18) days afte r the giving of the notice by
City. If such breach cannot be cured within such time period, the Financier shall
have such add iti onal period as may be reasonab ly required to cu re the same,
provided that the Fin anc ier gives notice to City of its intention to cu re and
commences the cure within eighteen {18) days after giving of the not ice by City
and thereafter diligently prosecutes the same to comp let ion. City shall not
commence legal action against Develope r by reaso n of Developer's breach
without allowing the Financie r t o cure the same as specified herein.
Notwithstanding any cure by Fin ancier, this Agree ment shall be binding and
effective against the Financie r and every owner of the Property, or part thereof,
whose title theret o is acquired by forec losu re, trustee sale or otherwise; provided ,
however, Financier and such owner shall not be respo nsible fo r any matters that
occurred prio r to th eir acquisition of the Project.
13. Estoppel Cert ificate. At any time and from time to time , Deve loper may de liver
written notice to City and City may deliver w ri tten notice to Deve loper requesting
that such Party certify in writing that, to the knowledge of the cert ifying Party, (i)
th i s Agreement is in full force and effect and a binding obligatio n of the Parties,
(ii) this Agreement has not been amended, o r if amended, the identity of each
amendment, and (iii) the requesting Party is not in breach of this Agreement, or if
in breach , a descript ion of each such breach. The Party receivi ng such a request
shall execute and return the cert ificate withi n ten (10) days following receipt of
the notice. City acknowledges that a certificate may be relied upon by
successors in interest to the Developer who requested the cert ificate and by
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12853-00 1812044326v 1.doc 31
holders of record of deeds of trust on the portion of the Property in which that
Developer has a legal interest.
14. Administration of Agreement. Any consent or approval herein to be given by the
City may be given by the City Manager provided it is express and is in writing .
Any decision by City staff concerning the interpretation and admin istrat ion of th i s
Agreement and development of the Property in accordance herewith may be
appealed by the Developer to the City Council, provided that any such appea l
shall be filed with the City Clerk of City with in ten (10) days after the affected
Developer rece ives written notice of the staff decision. The City Counc il shall
render its decision to affirm, reverse or modify the staff dec ision within thirty (30)
days after the appeal was fi led. The Deve loper shall not seek judicial review of
any staff decision without first having exhausted its remed ies pursuant to th is
sect ion.
15. Amendment or Termination by Mutual Consent. In accordance w ith the
provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect, this Ag reement may be amended or terminated,
in whole or i n part, by mutua l consent of City and the affected Developer.
15.1 Exemption for Amendments of Project Approvals. No amendment to a
Project Approval or Subsequent Approvals shall require an amendment to
th is Agreement and any such amendment shall be deemed to be
incorporated into this Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent with this Agreement
and does not a lter the perm itted uses, density, intensity, maximum height,
size of buildings or reservations and dedications as contained in the
Project Approva ls or Subsequent Approvals.
16. Developer Indemnification. Deve loper shall indemnify, defend with counsel
approved by City, and hold ha rml ess City and its officers, employees and agents
from and aga inst any and all losses, liab il ities, fi nes, penalties, costs , cla im s,
demands, damages, injuries or judgments aris i ng out of, or resu lting in any way
from , Developer's performance pursuant to this Agreement.
Developer shall indemn ify, defend with counsel approved by City, and ho ld
harmless City and its officers, employees and agents from and against any action
o r proceeding to attack, review, set aside, void or annu l this Agreement, or any
provi sion thereof, or any Project App roval or Subsequent Approval o r
modifications thereto, or any other subsequent entitlements fo r the project and
includ ing any related environmenta l approva l.
17. Time of Essence. T ime is of the essence for each provision of this Agreement of
which time is an element.
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12853-00 18\2044326v 1 .<loc 32
18. Operative Date. As described i n Section 1.6 above, Th is Agreement shall
become operative on the Operative Date, be ing the dat e the Enabli ng Ordinance
becomes effective pursuant to Government Code Section 36937.
19. Term. This Agreement shall remai n in full fo rce and effect for a term of seven (7)
yea rs com mencing on the Operative Date or unti l one yea r after the issuance of
the fina l building permit for occupancy of the last build ing of the Project
wh ichever occurs last, unless sa id term i s amended or the Ag reement is sooner
term inated as otherwi se provided herein. Notwithsta nding the foregoing, t he
following shall survive the expiration or earlier termina tion of th i s Agreement: (i)
all obl igations arising under this Agreemen t prior to the expiration or earl ier
termination of th is Agreement; (ii) density, park ing and other physical aspects of
the Project construct ion i n accordance with this Agreement , the Affordab le
Hous ing Agreement, and RPO 2012 -02.
Exp iration of the term or earlier te rmi nation of th is Agreement shall not
automatically affect any Proj ect Approva l or Subsequent Approval or B uilding
Permit o r Final Bui lding Perm it that has been granted or any r ight or obli gation
arising independently from such Proj ect App roval o r Subsequent Approval or
Bui lding Permit or Fi nal Bu i lding Pe rmit.
Upon expiration of the term or ea rlier t ermi nation of th is Agreement, the Parties
shall execute any document reasonably requested by any Party to remove th is
Agreement fro m the pub lic reco rds as to the Property, and every portion the reof,
to the extent permitted by appl icable laws.
20. Notices. All notices and other commun icat ions given pursuant t o this Ag reement
shall be in writing and shall be d ee med received when personally delivered or
upon the th ird (3rd) day after deposit in the Un ited Stat es mail, registered or
certified , postage prepaid , return receipt requested , to the Part ies at the
addresses set forth in Exhib it "D'' attached hereto and incorporated herei n.
Any Party may, from ti me to time , by written notice to t he other, designate a
different address whi ch shall be substituted for the one above spec ified.
21. Entire Agreement. This Ag reement and those exhib its and documents
reference d herein cont ain the ent i re agreement between the Part ies regard ing
the subject matter hereof, and all prior agreements o r understandi ngs, oral o r
written , are hereby merged herein. This Agree ment shall not be amended ,
except as ex press ly provided herein.
22 . Waiver. No wa iver of any provision of this Agreement shall constitute a waiver of
any othe r provis ion, whether or not similar; nor sha ll any such wa iver constitute a
continuing or subsequent waiver of the sa me pro vision . No waiver shall be
binding, unless it is executed in writing by a duly authorized rep resent ati ve of the
Party aga inst whom enforcement of the wa i ve r i s sought.
-2 4-
12853-0018\2044326v 1 .doc 33
23. Severab ility. If any provi sion of this Agreement is determined by a court of
competent jurisdiction to be inval id or unenforceable, the remainder of th is
Agreement shall be effective to the extent the remaining prov isions are not
rendered impractical to perform, tak ing into consideration the purposes of this
Agreement.
24. Re lat ionship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as
an agent of any of the other Parties in any respect. Noth i ng contained he rein o r
in any document executed in connection herewi th shall be construed as creat i ng
the relationship of partne rs , joint ventures or any other association of any kind or
nature between City and Developer, jointly or severally .
25 . No Thi rd Party Beneficiaries. This Agreement is made and entered into for the
sole benefit of the Parties and the ir successors i n interest . No othe r person shall
have any right of action based upon any provis ion of this Agreement.
26. Reco rdation of Agreement and Amendments. This Agreement and any
amendment thereof shall be recorded with the County Recorder of the County of
Ventura by the City Clerk of City with in the period required by Chapter 15.40 of
the Moorpark Mun icipal Code of City o r any successor thereof then in effect.
27. Cooperat ion Between City and Developer. City and Developer shall execute and
deliver to the other all such other and further instruments and documents as may
be necessary to carry out the pu rposes of this Agreement.
28. Rules of Construct ion . The captions and head ings of the various sections and
subsections of th is Agreeme nt are for convenience of reference only, and they
shall not const itute a part of this Agreement for any other purpose or affect
interpretat ion of the Agreement. Shou ld any provision of this Agreement be
found to be in conflict with any provi sion of the Pu rchase and Sale Agreement,
the Pro ject Approvals or the Subsequent Approvals , the provision of this
Agreement shall prevai l.
29 . Joint Preparat ion. This Agreement shall be deemed to have been prepared
jointly and equally by the Parties, and it shall not be construed against any Party
on the ground that the Party prepared the Agreement or caused it to be
prepared.
30. Governing Law and Venue. Th is Agreement is made, entered into, and executed
in the County of Ventura, Ca lifornia, and the laws of the State of California shall
govern its i nterpretation and enforcement. Any act ion, su it or proceed i ng related
to , or arising from , this Agreement shall be filed in the appropriate court having
jurisd icti on in the County of Ventura.
3 1. Attorneys' Fees. In the event any action, suit or proceed ing is brought for the
enforcement or declarat ion of any right or obligation pursuant to, or as a result of
any alleged breach of, this Ag reement, the prevai ling Party shall be entitled to its
-25-
12853·00 1812044326v1 .doc 34
reasonable attorneys' fees and litigation expenses and costs, and any judgment,
order or decree rende red in such action, suit or proceeding shall i nc lude an
awa rd thereof.
32. Counterparts. This Agree ment may be executed i n multip le counte rparts, each
of wh ich shall be deemed an original, but all of wh ich constitute one and the
same instrument.
IN WITNESS WHEREOF, Essex Moorpark Owner, L.P., and City of Moorpark
have executed this Development Ag reement on the date first above wri tten .
ESSEX MOORPARK OWNER, LP.,
a California lim ited partnership
By: Essex Moo rp ark GP, L.P
a Cal ifornia limited partnership,
Its general partner
By: Essex Management Corporation
a Ca l ifornia corporation ,
its general partner
By:
Tit le :
Print
-26-
12853·0018\2044326v1 .doc
C ITY OF MOORPARK
35
ACKNOWLEDGMENT
A notary public or oth er officer comp leting this
certificate verifies o nly the identity of the individua l
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validitv of tha t document.
State of California
County of San Mateo
On April 11, 2017 before me. Sandi A. Cabral, Notary Public
(i nsert name and titl e of the officer)
personall y appeared _J_o_h_n_E_u_d....;y _____________________ _
who proved to me on the basis of sa tisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the with in instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies). and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed th e instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
W ITNESS my hand and official seal.
5.M .. ra )/= • fl , ~ (Seal)
36
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark, California 93021 I Phone (805) 517-6200 I Fax (805) 532 ·2205
A notary public or other officer completing this certificate verifies only the identity of the
individual who s igned the docum ent to which this certificate i s attached, and not the
tru thfulness, accuracy, or validity of tha t document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA }
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK }
On this 17th day of April in the year 2017 , before me , Maureen Benson, City Clerk of
the City of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basi s of
satisfactory evidence to be the person whose name is subscribed to the within i nst rument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me tha t she exec uted the same i n her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of Ca l ifornia that the
forego ing paragraph is true and correct.
Witness my hand and Official Seal
Maureen Benson
C ity Clerk
JAN ICE S. PARV IN
Mayor
ROSEANN MIKOS, Ph.D.
Councilmcmber
DAVID POLLOCK
Councilmcmbcr
KEN SIMONS
Councilmcmbcr
MARK VANDAM
Cou ncilmcmbc r 37
EXH IBIT "A"
LEGAL DESCRIPTI ON
ALL of Parcel 213 of in that certain Lot L ine Ad ju stment No. 2005-04 i n the City of
Moorpark, County of Ventura, State of California , recorded July 21 , 2005 as Document
No. 200507210178764 or official records in the Office of t he County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho S i mi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4 , Tract No. 3 as per Map entitled "Map of M.L. Wicks Subd ivis ion of Part
of Tract U and Addition to Moorpark, in the Rancho Si m i, Ventura county, California" in
said C ity, County and State as shown on Map f i led in Book 5, Page 37 of said
Miscellaneous Records (maps).
T OGETHER WI TH that portion of Parcel IA of i n that certain Lot Line Adjustment No .
200503 in the City of Moorpark, County of Ventura, State of Californ ia, recorde d May 3,
2005 as Document No. 20050503-010831 5 o r officia l re cords in the Office of the County
Recorder of said Count y, being a portion of Lot "T", Tract No. "L", Rancho S imi as per
map filed in Book 5 Page 5 of Mi scellaneous Records (Maps) in th e Office of said
County Recorder, lying northerly of the following described line;
BEGINNING a t a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32'West 752.05 feet ;
2nd Th ence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West 293. 78 feet to a point i n the west l ine of said Parcel
1A.
12853-0018\2044326v 1 .doc 38
EXHIBIT "B"
LEGAL DESCRIPTION OF C ITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as Document
No. 20050503 -0108315 or official records in the Office of the County Recorder of said
County, being a portio n of Lot "T", Tract No. "L", Rancho Simi as per map filed i n Book 5
Page 5 of Miscellaneous Records (Maps) in the Office of sa id County Recorder.
EXCEPT THEREFROM tha t portio n conveyed to the C ity of Moorpark by deed Ap ril 30,
2009 as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described
line;
BEG INNING at a poi nt in east l in e of Parcel 1A of sa id Lot Li ne Adj ustment No. 2005-
03 , distant thereon North 292 .97 feet from the southeast erly corner thereof;
1s t Thence, departing sa id east line South 89 °38 '32"West 752.05 feet;
2nd Thence, South 27°20 '34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel
1A.
12853-0018\2044326v 1 .doc 39
EXHIBIT "C"
FORM OF REAL ESTATE PURCHASE AGREEMENT
(Attached.)
12853,00 18\2044326V1 .doc 40
AGREEMENT FOR PURCHASE AND SALE
AND ESCROW INSTRUCTIONS
THIS AGREEMENT FOR PURCHASE AND SALE AND ESCROW INSTRUCTIONS
(this "Agreement") is dated as of _____ ~ 2017; and is entered int9 by and between
the CITY OF MOORPARK ("Buyer"), and ESSEX MOORPARK OWNER, L.P., a
California limited partnership ("Seller"). Upon execution of this Agreement by Buyer; Buyer
shall promptly deliver a copy of this executed Agreement to Seller.
RECITALS
A. Seller is the owner of the land described on Exhibit "A" and the improvements (if
any) thereon ( collectively, the "Property").
B. Buyer desires to purchase the Property from Seller and Seller desires to sell the
Property to Buyer.
C. Buyer and Seller are parties to the certain Development Agreement dated
---.,..,----:-' 20 l 7 (the "Development Agreement") and this Agreement is being executed
as a condition of and in accordance with the Development Agreement
NOW, THEREFORE, in consideration o(the Independent Consideration set forth in
Section 1.2.2 below, and for other valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Buyer and Seller hereby agree as follows:
SALE AND PURCHASE PRICE.
1.1 Sale and Purchase. Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property upon the terms and conditions hereafter set forth.
1.2 Purchase Price.
1.2. l The purchase price ("Purchase Price") for the Property shall be
One Dollar ($1.00).
1.2.2 Independent Consideration. Notwithstanding anything in this
Agreement to the contrary, upon execution of this Agreement by Buyer, One Hundred and
Noll 00 Dollars ($100.00) shall be delivered by Buyer to Escrow Agent.for delivery to Seller as
non-refundable independent contract consideration (the "Independent Consideration"), w:hich
is in addition to the Purchase Price, and which amount has been bargained for and agreed to as
consideration for Seller's execution and delivery of this Agreement and for the rights and
privileges granted to Buyer herein, including, without limitation, any and all rights granted to
Buyer to terminate this Agreement during certain periods hereunder. If Buyer elects to terminate
this Agreement for any reason other than Seller's default, Seller shall retain the Independent
Consideration. The Independent Consideration shall not be applicable towards the Purchase
Price.
41
2. TITLE.
2. I General. Title to the Property shall be conveyed by a grant deed in the
form attached hereto as Exhibit "B" and shall be evidenced by a CLTA Standard Coverage Form
of Owner's Policy of Title Insurance (or an AL TA Extended Coverage Form Policy, if Buyer
elects such coverage as provided in Section 2.3 hereof) ("Title Policy"), and the extra C()St of any
such ALTA coverage shall be bome by Seller as described in Section 4.9 below. The Title
Policy shall be issued by First American Title Company, 1737 North First Street, Suite 500, San
Jose, CA 95112, Title Officer: Michael D. Hickey ("Title Company''), with liability in the full
amount of the Purchase Price, insuring title to the Property as vested in Buyer, free and clear of
all liens and encumbrances and other matters affecting title to the Property , except the utility
easement described in Section 6.23 of the Development Agreement (the "Utility Easement") and
other title exceptions which Buyer has approved in writing (which shall constitute "Approved
Title Exceptions") except that real property taxes and assessments shall be prorated.
(Seller may claim a refund of property taxes in the event any property taxes paid
are allocable to the period after the closing. Buyer, as a municipal corporation, is exempt from
property taxes.)
2.2 Acts After Date of Agreement; City Access. During the period from the
date ofthis Agreement through the Close of Escrow, except for the Utility Easement described in
Section 2.1 above and the Access Easement described in this Section 2.2, Seller shall not record
or pennit to be recorded any document or instrument re lating to the Property or physically alter
the Property or pennit or cause to be altered without the prior written consent of the Buyer,
which consent may be withheld in Buyer's sole and absolute discretion.
Notwithstanding the foregoing, after the date of this Agreement and ending upon
the conveyance of the Property to Buyer pursuant to this Agreement, Seller may use the Property
for the storage of construction debris, the storage of construction related materials and supplies,
and the deposit of dirt excavated or otherwise removed from the construction site on the Seller's
property to the extent pennitted by Section 7. IO of the Development Agreement. The restoration
•of the Property by Seller prior to the Close of Escrow shall be governed by Sections 6.29 and
7.10 of the Development Agreement-(and Seller shall comply therewith). Contemporaneously
with the execution of this Agreement, Buyer and Seller shall enter into the Easement Agreement
attached hereto as Exhibit "C" with respect to the portion of the Property more particular I y
described in the Easement Agreement pursuant to which Buyer may use the property described
in the Easement Agreement for the uses described therein including installation of a fence and
stockpiling dirt on the Property to the extent permitted therein and by Section 7.10 of the
Development Agreement.
3. NO REPRESENTATIONS BY SELLER ("AS IS" SALE).
3. I Buyer acknowledges that Seller is making no representations or w~ties
about the Property, express or implied; provided, however, that Buyer does ·not waive Seller's
obligations under Section 2.2 and Buyer does not waive Seller's obligations under applicable law
to disclose to Buyer all material facts known to Seller about the Property (including facts in the ·
Natural Hazard Disclosure Statement described below, whether or not required under applicable
42
law). Subject to the foregoing and Section 2.2, upon the Close of Escrow, Buyer shall talce title
to the Property in its then current "AS IS" condition, subject to Seller's obligations under Section
6.29 of the Development Agreement. Notwithstanding California Civil Code Section
I I 03.l(a)(9), Seller shall deliver to Buyer, with reasonable diligence after the execution of this
Agreement and at Seller's cost, a Natural Hazard Disclosure Statement (described in California
Civil Code Section I 103.2).
4. ESCROW.
4.1 Agreement to Constitute Escrow Instructions. This Agreement shall
constitute escrow instructions and a copy hereof shall be deposited with the Escrow Holder for
that purpose.
4.2 Escrow Holder. Toe escrow shall be opened with First American Title
Insurance Company, 2901 North Ventura Road, Suite 175, Ventura, CA 93036 ("Escrow
Holder''), within five (5) business days after the execution of this Agreement by Buyer and Seller
depositing an executed copy or executed counterparts of this Agreement with Escrow Holder.
This document shalf be considered as the escrow instructions between the parties, with such
further instructions as Escrow Holder requires in order to clarify the duties and responsibilities of
Escrow Holder.
4.3 Close of Escrow. For the purposes of this Agreement, "Close of Escrow"
shall be the date on which a grant deed for the Property in favor of Buyer is recorded in the ·
Official Records of the Ventura County Recorder's"Office. Provided all of Seller's and Buyer's
obligations to be performed on or before Close of Escrow have been performed and all the
conditions to the Close of Escrow set forth in this Agreement have been satisfied, escrow shall
close on or before the date that is six (6) months after the date on which the final Certificate of
Occupancy for the Project is issued ("Closing Date"). All risk of loss or damage with respect to
the Property shall pass from Seller to Buyer at the Close of Escrow. Possession of the Property
shall be delivered to Buyer upon the Close of Escrow.
4.4 Seller Required to Deliver. Before the Close of Escrow, Seller shall
deposit into escrow the following:
4.4.l Intentionally omitted
4.4.2 A grant deed conveying the Property to Buyer, in the form attached
hereto as Exhibit "B", duly executed by Seller and acknowledged (the "Grant Deed");
4.4 .3 A California 593 certificate and federal non-foreign affidavit (with
respect to Seller);
4.4.4 Any other documents reasonably required by Escrow Holder or the
Title Company to be deposited by Buyer to carry out this escrow.
4.5 Buyer Required to Deliver. On or before the Close of Escrow, Buyer shall
deposit into escrow the following (properly executed and acknowledged, if applicable):
43
4.5.J An executed and acknowledged "Certificate of Acceptance" in the
fonn attached to the Grant Dell!i (attached hereto as Exhibit "8 ");
4.5.2 The Purchase Price; and
4.5.3 Any other documents reasonably required by Escrow Holder to be
deposited by Buyer to carry out this escrow.
· 4.6 Conditions to the Close of Escrow. Escrow shall not close unless and until
both parties have deposited with Escrow Holder all sums and documents required to be deposited
as provided in this Agreement. Additionally, Buyer's obligation to proceed with the transaction
contemplated by this Agreement is subject to the satisfaction of all of the following conditions
precedent, whic.h are for Buyer's benefit and may be waived only by Buyer:
4.6 .1 The Building Department _of Buyer shall have issued a final
Certificate of Occupancy for the Project described in the Development Agreement.
4.6.2 Seller shall have performed all agreements to be perfonned by
Seller hereunder.
4.6.3 As of the Close of Escrow, the Property shall be in the a condition
reasonably similar to the condition it was in when the parties executed the Developme~t
Agreement, subject to Section 6.29 of the Development Agreement; and .
4.6.4 Title Company shall have issued or shall have committed to issue
the Title Policy to Buyer, for the amount of the Purchase Price, showing fee title to the Property
to be vested in Buyer subject only to the Approved Title Exceptions.
If any of the conditions to Close of Escrow are not timely satisfied for a reason
other than a default of Buyer or Seller under this Agreement, and this Agreement is tP.nnioated,
then upon termination of this Agreement, Escrow Holder shall promptly return to Buyer all funds
(and all interest accrued thereon) and documents deposited by Buyer in escrow and to return to
Seller all funds and documents ·depos ited by Seller in escrow and which are held by Escrow
Holder on the date of the termination (less, in the case of the party otherwise entitled to such
funds, however, the amount of any cancellation charges required to be paid by such party under
Section 4.11 below).
4.7 Recordation of Grant Deed; Delivery of Funds and Possession. Upon
receipt of the funds and instruments described in this Section 4, Escrow Holder shall cause the
Grant Deed to be recorded in the office of the County Recorder of Ventura County, California.
Thereafter, Escrow Holder shall deliver the proceeds of this escrow (less appropriate.charges) to
Seller, and Seller shall deliver possession of the Property to Buyer free and clear of all
occupants.
4.8 Prorations. Property taices shall not be prorated as Buyer is exempt from
property taices; Seller shall apply for a refund, if Seller has paid property taices that are allocable
to the period after the Close of Escrow. Al l property assessments shall be prorated between
44
Buyer and Seller as of the Close of Escrow based on the latest available tax infonnation. All
prorations shall be determined on the basis of a 360-day year.
4.9 Costs of Escrow. Seller shall pay the premium for the Title Policy
(including the cost of extended coverage and the cost of any survey obtained by Buyer in
connection with such extended coverage , and Seller's reimbursement of survey costs shall be a
condition to the Close of Escrow). The escrow fees, the recording costs (if any), and any other
closing costs or charges not expressly provided for herein shall be shared equally by the parties.
4.10 Brokers. Buyer and Seller represent to one another that no broker or
finder has been engaged by it in connection with the transaction contemplated by this
Agreement, or to its knowledge is in any way connected with such transaction. Each party
covenants and agrees that any broker fee or commission, which may be due or payable in
connection with the closing of the transaction contemplated by this Agreement through its
dealings with that party, shall be borne solely by that party. Each party agrees to defend,
indemnify and hold harmless the other party and its respective employees, agents,
representatives, council members, attorneys, successors and assigns , from and against all claims
of any agent, broker, finder or other similar party arising from or in connection with its activities
relating to the sale of the Property to Buyer.
. 4.11 Escrow Cancellation Charges. In the evenr that this escrow shall fail to
close by reason of the default of either party hereunder, the defaulting party shall be liable for all
escrow and title cancellation· charges. In the event that the escrow shall fail to close for any other
reason, each party shall pay one-half (1/2) of all escrow and title cancellation charges.
5. A TIORNEYS' FEES. In any action between Buyer and Seller seeking .
enforcement of any of the terms and provisions of this Agreement, .the prevailing party in such
action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs
and expenses, not limited to taxable c~sts, reasonable attorneys' fees and reasonable fees of
expert witnesses.
6 . NOTICES. All notices, requests, demands and other communication given or
required to be given hereunder shall be in writing and ·sent by first class United States registered
or certified mail, postage prepaid, return receipt requested, or sent by a nationally recognized
courier service such as Federal Express, duly addressed to the parties as follows:
To Seller: Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attention: John Eudy and Jordan Ritter
And
45
To Buyer:
Essex Moorpark Owner, L.P.
17541 Derian Avenue , Suite 110
Irvine, CA 92614
Attention: Bob Linder
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Manager
Delivery of any notice or other communication hereunder shall be deemed made on the
date indicated in the return receipt or cowier's records as the date of delivery or as the date of
first attempted delivery, if sent by mail or cowier service. Any party may change its address for
purposes of this Section by giving notice to 'the other party as herein provided.
7. ASSIGNMENT. Neither this Agreement nor any interest herein may be assigned
by either party without the prior written consent of the other party.
8. ENTIRE AGREEMENT. This Agreement contains all of the agreements of the
parties hereto with respect to the matters contained herein, and all prior or contemporaneous
agreements or understandings, oral or written, pertaining to any such matters are merged herein
and shall not be effective for any purpose. No provision of this Agreement may be amended,
supplemented or in any way modified except by an agreement in writing signed by the parties
hereto or their respective successors in interest and expressly stating that it is an amendment of
this .. Agreement. . • ·
9. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which shall constitute one and the
same instrument.
10. EMAIL DELIVERY. This executed Agreement (and executed counterparts of
this Agreement), may be delivered by email.
11. TIME OF THE ESSENCE. Time is of the essence of this Agreement.
12 . THIRD PARTIES . Nothing contained in this Agreement, expressed or implied, is
intended to confer upon any person, other than the parties hereto and their successors and
assigns, any rights or remedies under or by reason of this Agreement.
13. SEVERABILITY. If any one or more of the provisions contained in this
Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect by a
court of competent jwisdiction, such invalidity, illegality or unenforceability shall not affect any
other provision hereof, and this Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein, unless such invalidity, illegality or
unenforccability materially affects the economic terms of the transactions contemplated by this
Agreement or the ability of either party to perform its obligations under this Agreement. In such
case ,either party may terminate this Agreement and the escrow upon written notice to the other
party given no later than ten (I 0) business days after the party giving such notice becomes aware
46
of such invalidity, illegality or unenfori:eability. In the event of such termination, all funds
deposited with Escrow Holder by Buyer and any interest accrued thereon shall be returned to
Buyer.
14. ADDITIONAL DOCUMENTS. Each party hereto agrees to perfonn any further
acts and to execute, acknowledge and deliver any further · documents that may be reasonably
necessary to carry out the provisions of this Agreement.
15. AUTHORITY OF CITY MANAGER. The City Manager of Buyer may give any
and all notices, consents and terminations hereunder on behalf of Buyer provided they are in
writing.
16. DUE AUTHORIZATION/EXECUTION. Upon execution hereof, each party
shall promptly provide to the other party feasonable evidence of its due authorization of this
Agreement.
47
IN WJTNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
SELLER:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By: ________ _
Print Name: ______ _
Title: ________ _
BUYE R:
CITY OF MOORPARK
~y: ____________ _
Attest:
Janice S. Parvin
Mayor
Maureen Benson, City Clerk
APPROVED AS TO FORM:
Kevin G. Ennis, City Attorney
48
EXHIBIT "A"
LEGAL DESCRIPTION OF THE PROPERTY
All of Parcel IA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark ,
County of Ventura, State of California, recorded May 3, 200 5 as Document No. 20050503-
0108315 or official records in the Office of the County Recorder of said County, being a portion
of Lot "T', Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Iostnunent No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following described line;
BEGINNING at a point in cast line of Parcel IA of said Lot Line Adjustment No. 2005 -03,
distant thereon North 292.97 feet from the southeasterly comer thereof;
I st Thence, departing said east line South 89°3 8'32"West 752.05 feet;
2nd Thence , South 27°20'34West 36.75 feet;
. rd 3 Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel IA.
49
EXHIBIT "B"
FORM OF GRANT DEED
(Attached.)
50
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City Of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN:· _______ _
[SPACE ABOVE FOR RECORDER'S USE ONLY)
GRANT.DEED
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant Deed is exempt from Recording Fees pursuant
to California Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a public entity).
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged the
ESSEX MOORPARK OWNER, L.P., a California limited partnership ("Grantor") hereby
grants to the CITY OF MOORPARK ("Grantee"), the land and located in the County of
Ventura, State of California, more particularly described on Exhibit A attached hereto and
incorporated herein by reference and all improvements thereon (collectively, the "Property"):
IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the date set forth
below.
Dated: ----~·201_
GRANTOR:
ESSEX MOORPARK OWNER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a ·California corporation,
its general partner
By: ________ _
Print Name: ______ _
Title: ________ _
51
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the docwnent to which this certificate is attached, and not
the truthfulness, accuracv, or validitv of the document.
STATE OF CALIFORNIA
COUNTY OF ____ _
On_______ ____, 20 __ before me, ___________ __, Notary
Public, personally appeared · who proved to
me on the basis of satisfactory evidence to be the person(s) whose na,me(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.·
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: ________ _
( affix seal in above space)
52
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
All of Parcel IA of in that certain Lot Line Adjustment No. 2005-03 in the City of Moorpark,
Cowity of Ventura, State ofealiforitla, recorded May 3, 2005 as Document No. 20050503 ~·
0108315 or official records in the Office of the Cowity Recorder of said Co1,111ty, being a portion
of Lot ''T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscellaneous
Records (Maps) in the Office of said Cowity Recorder.
EXCEPT THEREfROM that portion conveyed to the City of Moorpark by deed April 30, 2009
as Instrument No. 20090430-00069389 of Official Records of said County.
ALSO EXCEPT THEREFROM that portion lying northerl y of the following described line;
B EGINNING at a point in east line of Parcel I A of said Lot Line Adjustment No. 2005 -03,
distant thereon North 292.97 feet from the southeasterly comer thereof;
I s' Thence, departing said east line South 89 °38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3':'1 Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel IA.
53
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant Deed
dateq ___ _, ~Q I 7, fu,Ill ~~J~ M.o~r-p~~ Q~e.r, ):,.t to the_ City of Moorpark, which is a
political corporation, is hereby accepted by the undersigned officer on behalf of the City of
Moorpark pursuant to the authority conferred by action of the City of Moorpark on ___ __,
2017, and the grantee consents to recordation thereof by its duly authorized officer.
Dated: ____ _,2017
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, aod not the truthfulness,
accwacy, or validity of that document.
State of California
County of _____ _
Steven Kueny,
City Manager
)
)
On ___________ ,, before me,-------------~
(insert name and title of the officer)
Notary Public, personally appeared-,--------------------'
who proved to me on the basis of satisfactory evidence to be the person( s) whose name( s) is/are
subscribed to the \vithin ·instrwnent and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/)l.ei:/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the StateofCalifomia that
the foregoing paragraph is true aild correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
54
EXHIBIT "C"
FORM OF EASEMENT
(Attached.)
55
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO :
Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attn: Legal
(Space Above For Recorder's Use)
EASEMENT AGREEMENT
THIS EASEMENT AGREEMENT (t~e "Agreement") is entere.d into as of
____ ..., 2017, by and between the City of Moorpark, a municip al corporation ("Grantee"),
and Essex Moorpark Owner, L.P., a California limited partnership ("Grantor'').
RECITALS
Grantor is theownerofthereal property located in the City of Moorpark, County of Ventura,
State of California, as more particularly described in Exhibit "A" attached hereto and
incorporated herein by reference (the "Property").
Grantee and Grantor entered into a Development Agreement dated as of ______ ...,
2017 (the "Development Agreement"), 'and an Agreement ·for Purchase and Sale and
Escrow Instructions dated as of ___ __, 2017 (the "Purchase Agreemeni").
Grantee requires access to a certain area of the Property for itse lf, its employees, its contractors,
. and any and all .permittees and invitees of Grantee and any and all of their respective
permittees and invitees, including, without limitation, any third party developer and/or its
agents, contractors and subcontrators, and all of their respective agents, employees and
rep res·entatives (collectively, the "Grantee's Agents.") prior to the closing of the purchase
and sale and conveyance of the Property to Grantee in accordance with the Purchase
Agreement for the purpose of stockpiling soil on the area s hown on Exhibit "B" hereto
(the "Stockpi le Area").
Grantor desires to grant to Grantee a exclusive access easement for Grantee and Grantee's
Agents to enter the Stockpile Area and an easement for the limited purpose o{ stockpiling
soil thereon and fencing the Stockpile Area . Such soil shall ~e subject to removal
pursuant to the terms of this Agreement.
In consideration of Grantee being granted access to the Property as described in this Agreement,
Grantee and Grantor hereby agree as follows:
• In corporation of Recitals, Capitali1,ed Terms. The Recitals are incorporated
herein as part of this Agreement. In addition, capitalized terms not otherwise. defined herein or
in the Recitals shall hav e the meaning set forth in· the Development Agreement and Purchase
Agreement.
56
o Grant of Easement. Grantor hereby grants to Grantee for the benefit of Grantee
and Grantee's Agents, a non-assignable but exclusive easement (the "Easement") to enter the
Stockp ile Area and to use the Stockpile Area for the sole purpose of depositing and storing of
clean, imported soil (in cluding the right of access for all necessary personnel, equipm ent and
materials but excluding any right to take any other action on, in , over, under, or around the
Stockpi le Area) and fenci ng the Stockpile Area and for no other uses or purposes. Grantee and
Grantee's Agents shall not use any other portion of the Property in any manner which impedes,
interferes with, disrupts, or increases the cost of any grading, construction access, construction,
excavation, construction stagi ng, the storage of construction materials and suppl ies, or the
s tockpiling of soil and other materials by Grantor on such other portion of the Property. If
Grantor, in Grantor's reasonable judgment, determines that Grantee has breached the covenants
in the preceding sentence, Grantor shall have the right to suspend Gran tee 's access to the
Stockpi le Area from the Property unti l the breach has been cured to Grantor 's reaso nab le
satisfaction. · ·
• Termination. The Easement and this Agreement shall automatically tenninate
on the earliest of (i) the date which is six (6) months after the date on which "t he final certificate
of occupancy is issued for the Property, if escrow closes purs uant to Section 4.3 of the Purchase
Agreement, (ii) any eru:li er termination of Purchase Agreement unless resulting from default
thereunder by Grantor, or (iii) the date which is twelve (12) months from the date on which the
final certificate of occupancy is issued for the Property, if escrow does not close pursuant to ·
Section 4.3 of the Purchase Agreement (collectively, the "Termination Date") unless escrow
does not close due to a default by Grantor under the Purchase Agreement; provided, however,
Grantee's indemnity and other obligations under this Agreement shall survive any such
termination.
o Remov al Obligation. Not later than the thirty (30) days following the
Termination Date (unless terminated pursuant to subsection (3)(i) above), Grantee shall remove
all equipment; materials, and stockpiled soil brought on to the Property, the Stockpile Area, or
both, by or at the direction of Grantee. Grantee, at its sole cost and expense, shall prompt ly
restore the Property, the Stockpile Area, or both, to the condition that existed thereon prior to
Grantee's or Grantee's Agents entry on to the Property, the Stockpile Area, or both. In the event
that Grantee fails , within the time required by this Sectio n 4, to restore tbe Property, the
Stockpile Area, or b oth, to the condition that ex isted thereon prior to Grantee's and Grantee's
Agents entry on to the Property, the Stockpile Area, or both, Grantor may restore the Property,
the Stockpile Area, or both to such condiiion and Grantee shall reimburse Grantor for all costs
and expenses incurred by or on behalf of Grantor in connection therewith .
o Haza rdous Materials. Grantee shall take all actions necessary and required to
assure that any and all soil brought to the Property (whether by Grantee or Grantee's Agents) fo r
placement in the Stockpile Area shall not contain or be affected by any "Hazardous Materials"
(as defined be low) such that (i) it cannot be lawfully placed for storage on the Property or (ii) it
would adversely impact soi l, gro undw ater or environmental conditions present on or und _er the
Property or otherw ise require response action by Grantor. The phrase "Hazardous Materials" as
used herein shall mean any flammable explosives, radioactive materia ls, asbestos in any form
which is friable or could become friable, hazardous waste, toxic substances or other related
materials whether in the form of a chemical, element, compound , solution, mixture or otherw ise.
57
For the purpose of this Agreement, Hazardous Materials shall include, b ut not be limited to,
substan= defined as "hazardous substan=", "hazardous materials," "contaminants,"
"pollutants," "hazardous wastes" or "toxic substan=" (a) in (i) the Comprehensive
Environmental Response, Compensation and Liabili ty Act of 1980, as amended by the ·
SJJperfund Amendments and Reauthorization Act 42 U.S .C. Section 9601 et seq., (ii) the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., (iii) the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., (iv) the Federal Water Pollution
Control Act, as amended, 33 U.S.C . Section 1251 , et seq., (v) the Clean Air Act, 33 U .S.C.
Section 7401 et seq., (vi) the Toxic Substan= Control Act, 15 U.S.C. Section 2601 et . seq., (vii)
the Safe Drinking Water Act, 42 U.S.C. Section 300f et seq., (viii) Sections 25117 and 25316 of
the Californ ia Health & Safety Code, (ix) applicable state or local law, or (x) the rules, orders or
regulations adopted or proposed or in the publications promulgated pursuant to said laws; or (b)
in any reported decision of a state or federa l court .
• Gran tee's Indemnity. Grantee, to the fullest extent pennitted by law, shall be
solely responsible for and pay for any and all loss and/or damage (i) to the Property, the
Stockpile Area, or both (and any property adjoining the Property, the Stockpile Property, or
both), or (ii) arisiJ1g out of or in connection with the use, storage or transport of Hazardous
Materials on the Property and/or Stockpile Area, including but not limited to the cost of any
remediation or third party claims re lated thereto, arising wholly or in part· from or in connection
with the use of the Property, the Stockpile Area, or both, pursuant to ( or in violation of) this
Agreement. Grantee shall keep the Property, the Stockpile Area, or both , free and clear of all
environmental liens, mechanics' and roaterialmen's liens and claims for labor and/or materials
· arising out of any activity upon the Property, the Stockpile Area, or both by Grantee or Grantee's
Agents . Grantee shall protect, defend, indemnify and hold Grantor and its members, managers,
partners, agents, officers, directors, employees and affiliates (''Grantor Inde_mnified Parties") free
and harmless against all claims, liens , actions, losses , liabilities, damages, costs and expenses
(includ ing but not limi~ed to reasonable attorneys' fees and costs and including any claims
arising in connection with the use, storage or transport of Hazardous Materials on the Property
and/or Stockpile Area, including, but not limited to, the cost of any remediation or third party
claims related thereto), collectively, "Clainls") of whatever kind or nature, including, but not
linlited to, consequential damages, arising in connection with the rights granted under or any
breach of Grantee's or Grantee's Agents covenants contained in this Easement except to the
extent caused by Grantor's gross negligence or·wiJlful misconduct. The forego ing
indemnification shall survive the termination of this Agreement.
o Comp liance wi th Laws. Access to and use of the Property, the Stockpile Area,
or both, by Grantee and Grantee's Agents and others shall be in strict compliance .with all
applicable laws, statutes, ordinan=, rules and .regulations, includ ing, without limitation; those
of the United States and the city, county and state in which the Property is located, and any
agency of any of the foregoing (the "Laws"), and Grantee shall defend, indemnify and hold
Grantor and its members, managers, partners, agents, officers, directors, employees and affiliates
free and harm less against all penalties, charges and damages including, without limitation,
consequential damages, costs and expenses (including, without limitation, attorneys' fees and
expenses) of whatever kind or nature, imposed for any violation or alleged violation by Grantee
or any Grantee Agent of any such Laws. Grantee sh all be responsible for obtaining and
complying with the conditions and requirements of all permits and approvals required under all
58
applicable Laws in connection with Grantee and Grantee's Agents' activities on the Property, the
Stockpile Area, or both.
o Insuran ce. At its sole cost, Grantee shall either maintain its participation in the
insurance program administered by the California JPIA (which includes liability coverage of
$1,000,000 per occurrence, with accrued aggregate limit of $1,000,000) or maintain equivalent
insurance, and will cause Seller to be named as additional insured thereunder, with respect to
Grantee's entry on and ·use of the Property. At its sole cost, Grantee shall deliver to Grantor
reasonable evidence of such insurance prior to entering the Property or the Stockpile Area.
o No Representations or Warranties Hereu nder. Grantee understands that
neither Grantor nor any Grantor Indemnified Parties have made or make any representation or
warranty, express or implied, as to the suitabi lity of the Property or the Stockpile Area for
Grantee's use in connection with the License granted under thi s Agreement. AJI infonnation
provided by Grantor with respect to the Property or Stockpile Area has been provided as an
accommodation and solely for Grantee's use in connection with its perfonnance of this ·
Agreement without any rep(esentation or warranty as to its accuracy or completeness. Neither
Grantor, nor any Grantor Indemnifi(ld Parties or their respective attorneys or advisors or any
other person will have any liability to Grantee or any of Grantee's Agents under this Agreement
for information provided or the exercise by Grantee or Grantee's Agents of any rights granted
either hereunder.
• No Wai ver. It is understood and agreed that no failure or delay by Grantor in
exercising any right, pow:er or privilege hereunder shall operate as a waiver thereof or the
exercise of any other rjght, power or. privilege hereunder. The provisions of this Agreement may
not be waived or ami:nded except by the written agreement of Grantor.
o Injunction. Grantee further understands and agrees that in the event of any
breach of this Agreement by Grantee or any of Grantee's Agents, Grantor would be •irreparably
and immediately hanT\ed and could norbe made whole by monetary damages. Accordingly,
Grantee hereby agrees that Granto r, in addition to any other remedy which it may have at law or
in equity, shall be entitied to injunctive relief to prevent breaches of this Agreement and/or
specific performance to compel compliance with this Agreement.
o Assign ment. This Agreement is binding on the successors and assigns of the
parties hereto. Notwithstandi ng the forego ing, Grantee may not assign its rights hereunder
without the prior writt~n consent of Gran tor in its sole discretion.
o Miscellaneous. This Agreement and any and al) matters arising under, from or
relating to this Agreement shall be governed by and construed in accordance with the internal
laws of the State of California without regard to choice of laws principles. This Agreement may
be executed in any number of counterparts, each of which shall be deemed an original , but all of
which, together, shall constitute one and the same instrument. A facsimile, scanned or
photocopy signature on this Agreement, any amendment or waiver hereto, or any notice
delivered hereunder shall have the same legal effect as an original signature. This Agreement
may not be amended or modified except in writing executed by the parties hereto.
59
. [signature page follows]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and y,ear first set forth above.
GRANTOR:
ESSEX MOORPARK OWNE R, L.P .,
a Cal ifornia limited partnership
By: Essex Moorpark GP, L.P
a Califomia limited partnership,
Its general partner
By: Essex Management Corporation
a Califomia corporation,
its general partner
By:
Title:
Print Name:
Grantor Notice Information:
Essex Moorpark Owner, L.P.
c/o Essex Property Trust
1100 Park Place, Suite 200
San Mateo, Ca 94303
Atte ntion: Legal Department
GRANTEE:
CITY OF MOORPARK,
a municipal corporation
By: _________ _
Janice S. Parvin ,
Mayor
Grantee Notice Information:
City of Moorpark
799 Moorpark A venue
Moorpark, Califomia 9302 1
Attn : City Manager
60
EXHIBIT "A"
LEGAL DESCRIPTION
OF THE PROPERTY
All of Parcel IA ofin that certain Lot Line Adjustment No. 2005-03 in·the City of Moorpark,
County of Ventura, State of California , recorded May 3, 2005 as Document No . 20050503-
0 I 08315 or official records in the Office of the County Recorder of said County, being a portion
of Lot "T", Tract No. "L", Rancho Simi as per map filed in Book 5 Page 5 of Miscell aneous
Records (Maps) in the Office of said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed Apri l 30, 2009
as Instrumen!No. 20090430-00069389 of Official Records of said County.
ALSO EXCE PT THEREFROM that portion lying northerly of the following described line; . .
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No . 2005 -03,
distant thereon North 292.97 feet from the south easterly corner thereof;
1•• Thence, departing said east line South 89°38'32"West 752.05 feet;
4nd Thence, South 27°20'34West 36.75 feet;
3td · Thence, South 89°03'54"West293.78 feet to a point in the west line of said Parcel IA.
61
EXHIBIT "B"
STOCKPILE AREA
(See attached diagram.)
62
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--.:
63
12853-0018\2044326v1.doc
EXHIBIT "D"
MAP FOR RE LOCATED POWER LINES
(Attached .)
64
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65
EXHI BIT "E"
A DD RESSES OF PARTIES
To C ity:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
T o D e ve loper:
ESSEX MOORPARK OWNER , L.P.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 11 0
Irvine, CA 92614
12853 ·00 18\204 4326v1 .doc
66
EXHIBIT "F"
FORM OF AFFORDABLE HOUSING AGREEMENT
12853-0018\2044326v 1 .dO<:
(Attached.)
Exhibit F
Page 1 of 1 67
Recording Requested By :
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention : C ity Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS L IN E FOR RECORDER'S US E
AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
ESSEX MOORPARK OWNER, LP.
Dated as of , 2017 _____ ,
68
AFFORDABLE HOUSING AGREEMENT
THIS A FFORDABLE HOUSING AGREEMENT (this "Agreement") is to be
effective as of _______ , 2017, regardless of the date of actual execution
hereof, and is by and between the CllY OF MOORPARK; a municipal corporation
("City"), ESSEX MOORPARK OWNER , L.P., a California limited partnership ("Owner").
REC ITALS
A. The City and Owner have entered into a Deve lopment Ag reemen t dated
_______ , recorded as Instrument No . _______ in the Official
Records of the County of Ventura on _________ (the "Developmen t
Agreem ent") pursuant to wh ich Owner will construct a residential development
consisting of 200 apartments on app roximately 10.57 acres (the "Property"), described
more specifically on Exhibit No . 1 attached hereto and incorporated herein by refere nce,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004 -05 ("GPA 2004 -05") Residential
Planned Development Permit No. 2012-02 ("RPO "), and Zone Change No . 2004-04
("ZC ") provide for the development of the Property in such manne r and the construction
of certa in off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPO and Mitigation Monitoring Program, as amended , are collective ly referred to as the
"Project Approvals".
C. The RPO requires that the apartments described on Exhibit No. 2 attached
hereto (located · as described on such exhibit) be affordable and available to households
with income that does not exceed specified leve ls, as described on Exhibit No . 2 , for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires th at Owner and Affordable Housing
Owner maintain each and every one of the Affordab le Units at all times in the same
manner as the market rate units, including, but not limited to the quality and
maintenance of flooring , window coverings , appliances, heating and air' conditioning
systems, storage space and type , and the number and location of requi red parking
spaces.
E. The Development Agreement requ i res that this Affordable Housing
Agreement be executed by Owner and delivered to City for recording , and that this
Affordable Housing Agreement not be subord inate to any liens (except for' property
taxes and assessments not yet du e).
F. As perm itted by the Development Agreeme.nt, Owner may apply for
approval of an air r ights subdivision such that the Affor.dab le Units may be conveyed to
and separately owned by a sing le entity affil iated w ith Owner (as descri bed in the
Development Ag reement) and used solely as affordable rental units in accordance with
this Agreement. Such affiliated ent ity is referred to herein as the "Affordable Housing
Owner''.
69
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
"Affordable Housing In lieu Fee" shall mean the annual fee paid to the City in
exchange for the Owner and Affordab le Housing Owner not being obligated to provide
four (4) additional Affordable Low Income Units in addition to the 50 Affordable Units
required by th is Agreement.
"Affordable Housing Owner" shall mean the single entity to which the sixteen (16)
Very Low Income Units and twenty-four (24) Low Income Units are conveyed if tax
exempt bond financing and low income housing tax credits are used with respect to the
Project described in Section 2.1 below; however, until Owner conveys such Affordable
Units to Affordable Housing Owner, and if Owner never conveys the Affordable Units to
Affordable Housing Owner, and to the extent of its ownership of the ten (10) Units
described in Section 2.1 and Exhibit No. 2, Owner shall be the "Affordable Housing
Owner" as well as the "Owner''. · ·
"Affordable Rent" shall mean the rent described in Sect ion 2.9, subject to
Section 2.10. ·
"Affordab le Units" shall · mean the re.nt-restricted dwelling unfts for Low Income
Households, Very Low Income Households and Moderate Income Households
described in this Affordable Housing Agreement.
"Agreement" shall mean th i s Affordable Housing Agreement.
"City" shall mean the City of Moorpark; California, a municipal corporation.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housi ng and Community
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by HCD
(or if HCD discontinues such publication , then such reasonab le replacement publication
as may be se lected by City in good faith).
"Density Bonus" sha ll mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals , which requires the
Deve loper to construct the Project, and also requires that at least twenty pe rcent (20%)
(i.e., 40 units) of the total dwelling units in the Project be rented at an Affordable Rent to
Very Low Income households (i.e., 50% of County Median income) and Low Income
70
households (i.e., 80% of County Median Income) and an additional five percent (5%)
(i.e. 1 O Units) of the total dwelling units in the Project be rented at an Affordable Rent to
Moderate Income households (i.e. 120% of County Median income).
"Development Agreement" shall mean that certain Development Agreement
dated _____ , 2017, recorded substantially concurrently herewith in the Official
Records of the County of Ventura .
"HCD" shall mean the pepartment of Housing and Community Development
(HCD) of the State of California.
"Initial Rent-Up" shall mean the period between the issuance of a c~rtificate of
occupal)cy for the first residential unit in the Project and "Stabilization" (as defined
below).
"Low Income" or "Lower Income" shall mean a household .income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit. The household income amount for Lower Income households
shall be based on the amount most recently published by HCD as the Household
Income Limits for Ventura County ("HCD Income Limits") or such successor information
in the event the referenced published information is no longer available.
"Low ·Income Household " or "Lower Income Household" or "Low Income Tenant''
means individuals or households qualified ·on the basis of a "certification of tenant
e ligibility" as certified by such individual or.household, who have a gross income which
does not ~xceed Low Income, adjusted for household size.
"Low Income Units" means Units rented to Low Income Households .
. "Moderate Income" shall mean a household income that does not exceed one
hundred twenty percent (120%) of the Coun_ty Median Income, adjusted for household
size appropriate to. the Unit. The ·household income amount for Moderate Income
households for any year shall be based on the amount most recently published by HCD
as the Household Income Limits for Ventura County ("HCD Income Limits") or such
successor information in the event the referenced published information is no longer
available. ·
1
"Moderate .Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Moderate Income, adjusted for
household size.
"Moderate Income Units " means Units rented to Moderate Income Households.
"Owner" shall mean Esse x Moorpark Owner, LP., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
71
"Project" is the residential development described in RPO 2012-02 consisting of
up to 200 apartments located on the Property, together with structures , improvements,
equipment, fixtures, and other persona l property owned by Owner or Affordable
Housing Owner and located on or used in connecti on with all such improvements and
all functionally related and subo rdinate facilities, and all improvements required by the
Project Approvals.
"Prc;,ject Approvals " is defined in Recital B above .
"Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
"Stabilization" shall mean the time at which the Project ach ieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
"Term • shall mean from the date of recordation of this Agreement until the later
of: (i) the date that the Property is no longer zoned for any residential use and cannot be
used for any res idential use or purpose as a "non -conforming use" and has no
residential occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
"Un its" shall mean residential dwelling units.
"Utility Allowance" shall mean the utility allowance set forth in the chart attached
to this Agreement as Exhibit No. 2 and referred to in Section 2.9.
"Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit. The household income amount for Very Low Income households shall be
based on the amount most recently published by HCO as the Household Income Limits
for Ventura County rHcO Income Limits") or such successor information in the event
the referenced published information is no longer available.
"Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such ind ividua l or household ,
who have a gross income which does not exceed Very Low Income, adjusted for
household size. ·
"Very Low Income Units" means Units rented to Very Low Income Households .
. 1.2 Rules of Construction.
1.2.1 The singu lar form of any word used herein , incl ud ing the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2 .2 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to th is Agreement as a whole.
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1.2.3 All of the terms and provIs Ions hereof shall be construed to
effectuate the purposes set forth in this Agreement and to sustain the va lidity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction , or effect of the provisions
hereof.
1.2.5 In the event the Development Agreement and th is Agreement
conflict, the provis ion more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSI NG IMP LEMENTATION ANQ RENTAL
RESTRICTION PLAN AN D USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose
affordability restrictions and househo ld income restrictions on the
Affordable Units in the Project, specifically there shall be sixteen
(16) Very Low Income Units , twenty-four (24) Low Income Units,
and ten (10) Moderate Income Units, all as more particularly set
forth on Exhibit No. 2.
B. However, Owner may obtain Federal low income housing tax
credits and tax-exempt bonds (collectively, "Affordab le Housing
Financing") to finance the Project, which will require that forty (40)
of the Affordable Units be restricted for rerit to Very Low Income
Households during · the .periods set forth in the Internal Revenue
Code, as the same may be modified by law applicable to the low
income housing tax credits (the "Compliance Period and Extend
Use Period") and applicable to the tax exempt bonds (the "Q ualified
Project Period"). At the end of whichever is the last to expire of the
Compliance Period and Extended Use . Period and the Qualified
Project. Period, Owner shall rent the ten (10) Mode rate Income
Units to Low Income Households consistent with the requirements
of this Agreement. Upon the the last to expire of the Compliance
P.eriod and Extended Use Period and the Qua lified Project Period,
the provisions of this Agreement shall be appl icable and the
number of Very Low Income Un its, Low Income Units, and
Moderate Income Units shall be consistent w ith Section 2.1.A.
above and Exhibit No. 2.
At the time the Project is no longer required to comply with
Affordable Housing Fi nanci ng, the City, Owner and Affordable
Housing Owner shall in good faith , and consistent with applicable
law and this Agreement , prepare a plan to trans ition the Affo rdable
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Units so that the number of Very Low Income Units, Low Income
Units, and Moderate Income Units in the Project is as required by
Section 2 .1A above and Exhibit No. 2 and that there are Very Low
Income Households , Low Income Households, and Moderate
Income Househo lds occupying the Affordable Units consistent with
Section 2 .1.A. above and Exhibit No. 2 in the shortest possib le
time.
2.2 Agreement to be Recorded: Priority. Owner and Affordable Housing
Owner represent, warrant , and covenant that they will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California, and that
this Agreement shall be senior in priority to any lien, encumbrance or other matter of
record except as expressly approved in writing by City. The Owner or Affordable
Housing Owner shall pay all fees and charges ·in connection with any such recordation.
2.3 · . Use of the Property. Owner represents, warrants, and c_ovenants to
develop and operate the Project and Property as a mu ltifam ily residential rental property
and uses incidental thereto and for no other purposes. Owner and Affordable Housing
Owner agree that the Affordable Units shall have the same or better amenities (in type ,
quality and number) as the market-rate units in the Project (as determined by the
Community Development Director) and shall be located as described on the site plan
attached to Exhibit No. 2. Such amenities for the Affordable Units shall include, without
l imitation, air conditioning/heating , plumbing and electrical fixtures, garbage disposal,
f looring, cabinets , counter tops, trim , built-in dishwasher, clothes washer and . dryer,
sinks , bathtub, solar or so lar stub out, water heater, built-in oven, microwave, stove,
bathroom fan (the most quiet model), garage door openers, doors a_nd door hardware,
and floor and window coverings (all to the same extent provided for the market rate
units). Owner and Affordable Housing Owner shall promptly notify City in writing upon
any re location of an Affordab le Unit under this Agreement (meaning change in the
designated/intended household income level, not an actual change in the fixed locations
of the Affordable Units, which constitute a· separate subdivided parcel, and are fixed as
shown at the end of Exhibit No. 2). and each such notice shall include the basis for such
re location and the location of such relocated Affordable Unit(s); however, the ten (10)
Mode1c1te Income Units to be owned by the Owner of the market-rate Units shall be
random ly dispersed among its Units in the portion of the Project owned by the Owner
consistent with Exhibit No. 2. Owner and Affordable Housing Owner further agree not
to convert the Project or any part thereof to any type of common interest development,
for-sale condominiums, community apartments, planned development, stock
cooperative, hotel, motel, or any type of congregate care or assisted living facility (but
the foregoing shall not prohibit the air rights subdivision and conveyance described in
Recital F above). Owner and Affordable Housing Owner agree that they shall not
knowingly permit any of the Units in the Project to be used on a transient basis and shall
not rent any Unit for a period of less than thirty (30) days. At no t ime shall any of the
Affordable Units be rented to an employee, agent, officer, contractor of any owner of
any portion of the Property or Project or of any company affi liated with any such owner,
or to any such affiliated company.
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2.4 INTENTIONALLY OMITTED
2 .5 Rules . In addition to the conditio ns and restrictions to be contained in
leases or rental agreements as prov ided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, polic ies and regulations issued from
time to t ime by Owner an.d Affordab le Housing Owner and approved by City which
approva l shall not be unreasonably withheld , conditio ned, or delayed ("Rules"). Owner
and Affordable Housing Owner shall submit such Rules to City during the Initial Rent-Up
for the City's approval, which will not be withheld , conditioned or delayed. Annually,
Owner and Affordable Housing Owner shall subm it any amendments, mod if ications or
changes to such Rules to the City at least forty-five (45) days prior to their proposed
effective date and all of such amendments, modifications and changes shall be subject
to the City's prior written consent, which will not be withheld, conditioned or delayed. If
City does not consent, City shall spec ify the reasons in writing so that Affordab le
Housing Owner can revise the amendment(s), modification(s) o r change(s) and re -
submit them for City approval, which will not be withheld , cond itioned or delayed . In
additi on , Owne r and Affordable Housing Owner shall submit to the City on an ann ual
basis a certification that the Rules previously subm itted to City, as amended, remain in
effect (with a copy .of the Ru les and any amendments). If app licab le, this Agreement
shall be cons istent with any Extended Use Agreement entered into petween Owner or
any affiliate of Owner and th e_ California Tax Credit Allocation Comm ittee .
2.6 Single Owner. Except for the ten (10) Moderate Income Units (which will
be Low Income Units until the last to end of the Compliance Period and Extended Use
Period and the Qualified Project Period , as set forth in Section 2.1 .B. above, and will be
owned by the owner of the marl<et-rate Units), all of the Affordable Units shail be and
remain owned by the Affordable Hous ing Owner (an affiliate of the Owner of the market-
rate Units). Such ten (10) Ul)its (Moderate, or Low Income until the last to e nd of the
Compliance Period and Extended Use Period or the Qualified Project Period) may be
owned by Owner but shall be subject to this Agreement. No Affordable Unit may be
sold separately.
2.7 Affordab le Units Generally.
2.7.1 Allocat ion/Dispersal of Affordable Units. As set forth ol) Exhibit No.
i, the Affordable Units shall be random ly dispersed throughout the Project, and as
described in Section 2.3 above , Owner and Affordab le Housing Owner shall promptly
notify City in writing of any change in the designated income level of any Affordable
Unit.
2.7 .2 Access ible Compl iant Unit s. Four (4) of the nin eteen (19) one-
bedroom one-bath affordab le Low and Very Low Income units shall be complia nt with all
laws regarding disabled persons (including, Without limitation , the Americans with
Disabil ities Act) and s hall be reserved for a nd occup ied by persons el igible for such
· accommodation s , to the extent there is a qualified accessible Low or Very Low Income
pe rson ready to occupy such un it. Owner and Affordable Housing Owner shall ma i ntain
a waiting list for the affordab le accessible-compliant units, shall promptly deliver a copy
75
thereof to City and shall thereafter deliver a copy of the revised list to City whenever the
list changes. Should there be a qualified Low or Very Low Income prospective tenant
desiring to rent such a unit but all such units are rented , Owner and Affordable Housing
Owner shall add such prospective tenant to the waiting list for the affordable accessible-
comp liant units. At the earliest possible time a Low or Very Lo)V Income non-accessible
comp liant affordable unit becomes avai lable, the non-access ible Low or Very Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy
the accessible compliant unit. Owner and Affordable Housing Owner shall include a
provision in the non-accessible compliant affordable lease for any accessible-compliant
affordable unit that the non-accessible Low or Very Low Income tenant agrees to be
relocated, at Owner's or Affordable Housing Owner's cost, as soon as a non-accessible
compliant unit becomes available. While any of the four (4) affordab le accessible-
compliant units are not being leased to disabled persons (due to unavailability of such
persons to lease), the appl icable Affordable Unit shall be leased in accordance with this
Agreement.
At all times, Affordable Housing Owner shall keep City informed in writing of the
income level appl icable to each accessible compliant unit. The fixed locations of the
Affordable Units shall be as shown on the site plan attached to Exh ibit No. 2.
. .
The accessib le compl iant units shall be consistent with accessibility design
criteria established by the State of California, and Owner and Affordable Housing Owner
shall promptly make any changes to such units required by new laws or changes in
laws. Reasonable accommodation shall be made, as may be requested by specific Low
or Very Low Income disabled tenants in such units, to provide features such as ·smoke
alarms with flashing lights, for instance, if ·requested by hearing impaired Low or Very
Low Income tenants in an accessible compliant unit.
2.7.3 Affordable Housing In Lieu Fee.
2 .7.3.1 ·· In addition to the Affordable Units herein described,
Owner and Affordable Housing Owner shall pay (and be jointly and severally liable for)
a single annual in lieu fee for having irrevocably elected not to provide four (4)
additional Low Income units (the "Affordable Housing In Lieu Fee "). The modification of
affordability levels for Affordable Housing F inancing purposes (as described i n Section
2.1 , 2.12 and Exhibit No. 2), shall not affect the foregoing.
2 .7 .3 .2 The Affordable Housing In Lieu fee shall initially be
Forty Seven Thousand Five Hundred and No/100 Dollars ($47,500.00) if pa id on or
before Jam1ary 1, 2019. If the initial payment is not paid by January 1, 2019, it shall
increase by two percent (2%) each year above the prior year amount. Similarly, all
subsequent annual payments shall increase by two percent (2%) of the previous year's
payment.
Payments shall be made on March 10 of the first ca lendar year in which one or
more residentia l unit in the ' Project has theretofore been occupied , and on or before
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March 1 0 of each subsequent ca lendar year. If March 10 falls on a Saturday, Sunday,
or City Holiday, then payment shall be due on the City's next business day. A late
payment charge (const ituting liquidated damages) equal to ten percent (1P%) of the
payment due shall be added to payments received three (3) days or more after the due
date-as stated herein or when a deficient check has been given for payment, and the
parties hereby stipu late and agree that it would be very difficult and impractical to
determine the damages suffered by City, as a public entity , due to late payments.
Payments received more than ten (10) days after the due date shall, i n addit ion to the
ten percent (10%) late charge, accrue interest at a rate of twelve percent (12%) from the
due date through and inc luding the date the payment is received by the City .
In the event of a sale, transfer, assignment of any type or any portion of the
Project or Property by Owner. or Affo rdable Housing Owne r to any othe r entity not
owned in whole or in part by Owner, the . fee amount referenced above shall be
increased based on the new value of the Property as if it had been reassessed by the
Ventura Ct>unty Assessor and not exempt from the payment of new property taxes. The
calculation shall provide the City 0.095% (equivalent to $950.00 per $1 million of
assessed value) of the assessed value or such higher percentage of the tota l new
property taxes if the -City port ion has been increased by action of the State of California
or by a statewide initiative or referendum. (For example, if the sale results i n a val ue of
$50,000,000.00 then the annual fee to the City would be $50,000,000.00 X .00095 =
$47,500.00, or if the City portion of the property taxes has been increased by the State
of California on a statewide initiative or referendum then the amount would increase). In
the event the payment to the City under _this calculation would be less than the I nitial
Affordable Housing In-lieu Fee Amount, inclusive of an y 2%. adjustments applied as of
the date of sale, transfer or assignment, then such adjusted Initial In-lieu Fee Amount .
shall continue until such time as the ca lculation in this paragraph would yield a higher
annual fee.
2 .7.4 Preference Policies. To the extent permitted by app licable state
and federal law, priority shall be granted to eligible City of Moorpark res idents. A
waiting list for the Affo rdab le Units shall be maintained from wh ich vacancies shall be
filled. The waiting list shall be established through a fair process for the selecti9_n of the
next eligible households to fill the vacancies all owing for priority for City of Moorpark
residents to the extent permitted by applicable state and federal law. Details of this
process shall be submitted in writing to the City for review and approval prior to the
issuance of the first bui lding permit for this project. Add itionally, Affordable Housing
Owner shall submit to City an annual report, no later than January 30 of each ca lendar
year for the pervious ca lendar year, describing the vacancies filled from households on
the list, total vacancies filled and the number of households on the l ist.
2.7.5 Occupancy Reporting. As specified in Section 2.12, Owner and
Affordable Housing Owner will advise City on a quarterly basis in writing of the number
of Affordable Units occup ied by Very Low, Low and Moderate Income Tenants by
delivery of a certificate in the form specified by the City. which is attached hereto as
Exhibit No. 3, which shall include a statement as to whether or not the tenant was a City
of Moorpark res ident who on the waiting list and was given priority. Any reporting
77
schedule less frequent than quarterly must be express ly approved in writing by the City
Manager.
2.7.6 Un it Classification. An Affordable Unit occupied by a Very Low
Income Tenant, a Low Income Tenant, or a Moderat e Income Tenant shall be deemed,
upon termination of occupancy by such tenant (whether voluntarily o r involuntarily), to
be continuously occupied by a Very Low Income Tenant, a Low Income Tenant, or a
Moderate Income Tenant, as applicable, until re-occupied othe r than for a temporary
period (not to exceed· 60 days), at which time the classificat ion of the Unif shall be
redetermined (provid ed that upon such reclassification , Affordable Housing Owner must
remain in compliance with this Agreement). Owner and Affordable Housing Owner shall
use commercially reasonable efforts to prevent s·uch temporary periods from exceeding
sixty (60) days. Owner and Affordable Housing Owner. will also obtain and maintain on
file such Certifi cations of Tenant Eligibility in the form of Exhibit No. 3 attached hereto ,
for each Very Low, Low and Moder.ate Income Tenant. Owner and Affordable Housing
Owner shall make a good fa ith effort to ve rify that the income declared by an applicant
in an ir,come certification is accurate by reviewing any one or more of the following
documents, which shall be provided by the applicant:
(a) A pay stub for the most recent pay period ;
(b) An income tax return fo r the most recent tax year;
· (c) An income verification form from the applicant's current employer;
(d) An income verification form from the Soc ial Security Administration
and/or the California Department of Socia l Services if the applicant receives assistance
from either of those age ncies; or
(e) If the applicant is unemployed and has no tax return , another form
of independent verification is needed.
In addition to the above-referenced income certification, el igible Very Low and
Low I ncome applicants for the ADA compliant units shall submit a letter from a
physician or other document acceptable to the City, Owner and Affordable Housing
Owner which confirms t he accessib ility needs of the applicant.
2 .7 .7 Lease Provisions . The Owner and the Affordable Housing Owner
shall include provisions in all signed leases or rental agreements for all Affordable Units
wh ich authorize the Owner or Affordable Housing Owner, as applicable , to im mediate ly
terminate the tenancy of any tenant occupying an Affordable Unit where one or more of
such tenants have mis represented any fact material to the qualification of such an
ind ividual or household as a Very Low, Low or Moderate I ncome Tenant and/o r for
qualification for occupancy of an Affordable Unit, and Affordable Housing Owner and
Owner shall reasonably enforce such termination rights (i.e., Affordab le Housing Own~r
or Owner, as app licable, shall exercise them and not waive them). Each lease or renta l
agreement for an Affordab le Unit shall also provide that the tenants of such Affordable
Unit shall be subject to annua l certification or recertification of income, as required by
78
the City , and shall be subject to rental increases in acco rdance with Section 2 .1 O of this
Agree ment. ·
2.7.8 Management Diligence. Owner and Affordable Housing Owner
shall use commercially reasonab le efforts not to allow any rent-ready Affo rdable Unit to
remain vacant.
2.7.9 Administration by City: Administrative Fee. City shall appoint a staff
person to oversee the implementat ion of this Agree ment, and shall notify Owner a nd
Affo rdable Housi ng Owner in writing of the name and phone number of such staff
person and any replacements. On or before the first day of February of each year
during the Term of this Agreement, commencing after the first residential occupancy of
the Project, Affordable Housing · Owner and Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), ·subject to adjustment annually by
the larger of (a) or (b} below:
(a) The percentage increase in the Cons umer Price Index
during the prior year , which shall be determined by using the Consumer Price Index by
the U. S. Department of Labor, Bureau of Labor Statistics, for all urban consumers, all
items, for the Los Angeles/River:;ide/Orange County metropolitan area. The calculation
shall be made by copy irig suc h CPI for the month of Octobe r to the CPI for the previous
October. ·
(b) The annua l percentage amount paid to City by the Local
Agency Investment Fund (LAIF}, calculated as follows: T he sum of the quarterly
effective yield amounts paid by LAIF for the City's Poo led Money Investment Account
for the most recent four (4) calendar quarters divided by four (4).
In the event the CPI or LAIF is discontinued or revised , such
successor index with which they are replaced shall be used to achieve substantially the
· same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result. ·
2 .7.10 Lease Provisions. The provisions relating to certificat ion and
recertification of income in the form of lease or rental agreement used by the Owner o r
the Affo rdable Housing Owner for the lease or rental of the Affordable Un its shall be
subject to review and app roval by the City, the approval of wh ich s hall not be
urireasonably withheld , conditioned, or delayed. If the lease or rental agreement
provis ions specified in this Section are not approved or disapproved with in th i rty (30)
days after submittal to City, t hey shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8 .1 For initial rent-up only, for each ten (10) units rented in the Project
(i.e., both Affordable Units and other units), at least two (2) must be Affordable Un its
which comply with this Agreement.
79
2.8.2 During the Initial Rent-Up, the Very Low ·lncome Units occupied by
Very Low Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed sixteen (16) units (subject to Section 2.1 above).
2.8.3 .During the Initial Rent-Up, the Low Income Units occupied by Low
Income households, plus . t hose Units held available for occupancy by such tenants,
shall be equal to or exceed twenty-four (24) units (subject to Section 2.1 above).
2.8.4 ·During the Initial Rent-Up, the Moderate Income Units occupied by
Moderate Income households, plus those Units held available for occupancy by such
tenants, shall be equal to or exceed ten (10) units (subject to _Section 2.1 above).
2.8.5 In connection with the Init ial Lease-Up of the Project, Owner and
Affordable Housing Owner will adopt outreach programs to locate qualified tenants for
the Project and shall establish such procedures for occupancy, renta l, and rent
grievances as may be reasonably required by the City. Not later than ten (10) days prior
to the commencement of marketi ng , Owner and Affordable Housing Owner shall
prepare and submit to the City for reasonable approval a marketi ng and outreach
program which shall contain, among other things, the following : how a potential tenant
would apply t o rent a Unit in the Project, including wh e re to apply, applicable income
limits and rent levels; support documentation needed such as pay stubs, tax returns, or
confirmation of disability, if applicable, a description of procedures Owner and
Affordable Housing Owner will follow to publicize vacancies i n the Project, including
notice in newspapers of general circulation, including at least one Spanish-language
newspaper and mailing notices of vacancies to or contacting by telephone potential
tenants on the waiting list maintained by Owner and Affordable Housing Owner.
Notices shall also be given to organizations in Ventura County which p rovide referra ls or
other services to persons with disabilities.
2.8 .6 In the event that any Affordable Unit is rendered unfit for occupancy
(including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance w ith this
Agreement), Owner or Affordable Housing Owner, as applicable , shall pay the City a
single fee of $1 O (which shall increase by $2 every five (5) years) per day until the
Affordable Unit 'is placed back in service except that such fee shall not be payable for so
long as Owner or Affordable Housing Owner is diligently attempting to repair or re-build
the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for fam ily size appropriate for the Unit, less the Utility Allowance. "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h) of
the California Health and Safety Code to be 2 persons for a ·1 bedroom un it , 3 persons
for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Low Income Tenants shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance . · "Family size appropriate
to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.5(h} of the California
Health and Safety Code to be 2 persons for a :1 bedroom unit, 3 persons for a 2
bedroom upit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Moderate Income Tenants shall be no
greater than th irty percent (30%) of one hundred and ten (110%) of County Median
Income, adjusted for family size appropriate for the Unit, Less the Utility Allowance.
"Family size appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section
50052.5(h) of the California Health and Safety Code to be 2 persons for a 1 bedroom
unit, 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
"Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667)
based on Apartment/Walk Up unit type as posted and updated annually by the Area
Housing Authority of the County of Ventura based on the following appliances/utilities to
~e provided to the units:
Natural Gas -Heating, cooking, water heating
Water, Sewer, Trash, O.ther Electric allowance (for lights and other electric
uses) ·
2.1 O Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or
future prudent refinancing of this project, utilizes definitions, sources of information, etc.,
other than those which have been herein defined and utilized in calculating Affordable
Rent, then the procedure or input which produces the lowest affordable rent, will prevail.
2.11 Income Recertification : Rent Increases.
2.11.1 Owner and Affordable Housing Owner shall cause the income of
each Tenant of an Affordab le Unit to be re -certified on an annual basis on the
anniversary date of each such tenant's initial rental date. This recertification shall be
submitted in writing to the City within thirty (30) days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
ca lendar year, concurrently wjth or subsequent to any increase in the County Meqian
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by a Very Low, Low
or Moderate Income Tenant, as the case may be, shall not exceed the allowable rent
calculated in compliance with Sections 2.9 , 2.12.1 , 2 .1 2.2, and 2.12.3 below.
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2.12 Increased Income of Occupy i ng Households. On ly afte r the last to exp ire
of the Compliance Period and E)(!ended Use Period or the Qualified Project Period with
respect to the Very Low Income Units and the Low Income Units rented to Very Low
Income Households, and at all times for the ten (10) Moderate Income Units regard less
of whether they are rented to Moderate Income Households or rented to Low Income
Households, the following shall apply:
2.12 .1 If, upon income recertification, the Owner or Affordable Housing
Owner, or both, as applicable, determines that the household income of a Very Low
Income Tenant has increased above the maximum allowable household income level of
a Very Low Income Tenant, but remains equa l to or below that of a Low Income
household, then , except as provided below in this Section 2 .12 , the Owner or Affordab le
Housing Owner, o r both, as applicable, shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of sixty percent (60%) of the County Median Income for the s ize
household appropriate to the unit (less the utility allowance), upon sixty (60) days
written notice to the occupants the reof. In that event, the next available unit that was
previously .a Low Income Unit must be rented to (or held vacant and available for
immediate occupancy by) a Very Low Income fiouset)old .
2.12.2 If , upon income recertification, the Owner or Affordable Housing
Owner, or both , as appl icable, determines that the household income of a Very Low or
Low Income Tenant has increased above the maximum a ll owable household income of
a Low Income Tenant, to not m ore than Moderate Income, which is one hundred and
twenty percent (120%) of median income, then the Owner or Affordable Housing
Owner, or both , as applicable, shall not be required to evict t he Tenant and the monthly
rent charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent
(30%) of one hundred ten percent (110%) of the Gounty Median Income fo r the size
household appropriate to the unit, less the utility allowance. In this event, the next
available un it that was previously a Moderate Income unit must be rented to or held
vacant · and available for immediate occupancy by a Very Low or Low Income
household, as the case may be , at an affordable rent (1/12 of 30% of 50% of Median
Income, in the case of a Very Low Income unit, or 1/12 of 30% of 60% of Median
Income, in the case of a Low Income unit, both of wh ich are net of the utility allowance).
· 2.12.3 If, upon i ncome re -certification, the Owner or Affordab le Housing
Owner, or both , as applicable, determines that the income of a tenant occupying one of
the Affordable Units has increased and now exceeds that of a Moderate Income
household, the Tenant is no longer eligib le to rent the unit, and the Owner or Affordab le
Housing Owner, o r both, as app licable, shall not increase the rent but shall provide
written notice to the Tenant to vacate the unit within s ix (6) months . If an appropriate
unit is ava ilable to substitute for sa id un it, and the "substitute unit" has not been one of
the Affordable Units, prov ided that sa id substitute un it is of the same configuration and
size as the unit currently occupied by the now ineligible T enant, the Affordable Housing
Owne r may request authorization from the City Manager or his/her des ignee to
substitute the like unit for the Affordable Unit, and cause the rent on the substitute un it
to be at the same level of affordab ility as the unit that was occup ied by the formerly
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elig ible Tenant, and the City Manager shall use good faith efforts to respond within thirty
(30) days.
Notwithstanding the foregoing , any such Tenant shall have the right to request a
recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that i ncome is not greater than the
maximum allowable househo ld i ncome leve l due to a documented voluntary reduction
of income, then the notice to vacate shall be withdrawn .
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period , the foregoing prov isions shall not apply to the units rented to
Very J.-ow Income Households, but shall continue to app ly to the ten (10) Moderate Units
that are to be rented to Low Income Tenants during such period (and owned by the
entity which also owns the market rate Units). Until the last to end of the C ompliance
Period and Extended Use Pe riod o r the Qualified Proj ect Period, Owner and Affordable
Housing Owner shall comply with laws and regu lations, and any separate/additional
recorded restrictions or "Regulatory Agreement" required by the Affordab le Housing
Financ ing.
Owner and Affordable Housing Owne r shall promptly deliver to City copies of all
Affordable Housing Financing regulatory agreements or similar agreements restricting
Units in the Project, and shall notify City and all affected tenants in writing of the
expiration of the Bond Period at least one ( 1) calendar year (but not more than fourteen
(14) months) prior to expiration of the Compliance Period and Extended Use Period or
Qualified Project, Period, whichever expires later, of any effect on the affordability level
of their Affordable Units.
Additionally, Owner and Affordable Housing Owner shall notify City in writing of
any re-synd ication or extension of tax credit financing and any defeasance or
refinancing of bond financing as soon as they become reasonably likely. · ·
2. 13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner and Affordable Housing Owner hereby agree that specific
enforcement of Owner's and Affordable Housing Owne r's agreements to comply with
the allowable rent and occupancy restrictions of this Agreement is one of the reasons
for the City's issuing the Project Approvals and entering into the Development
Agreement.
2.13.2 Owner and Affordab le Housing Owner further agree that, in the
event of any breach of such requirements, potential monetary damages to City, as well
as prospective Very Low, Low and Moderate Income Tenants, wou ld be difficu lt, if not
impossible, to evaluate and quantify.
2.13.3Therefore, in addition to any other relief or damages to which the
City may be entitled as a consequence of the breach hereof, Owner and Affordab le
Housing Owner agree to the imposition of the remedy of specific performance aga inst it
in the case of any event of default by Affordab le Housing Owner in complying with the
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allowab le rent, occupancy restrictions or any other provision of this Agreement. Nothing
herein shall impair City's rights to liquidated damages under Section 6.4 be low.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requ irements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed , whichever occurs later, Owner and Affordable Housing Owner shall prepare
and submit to the City, on a quarterly basis , written reports, setting forth the rental
activity for the previous month, and the current total number of Affordable Units
occupied by tenants. ·
2 .15.2 Commencing with the first full calendar quarter after ·the last pe riod
covered by monthly reports pursuant to Section 2 .15.1 , Owner and .Affordable Housing
Owner shall prepare a nd submit to the City, on a -quarterly basis, not later than the 15th
day of each ca lendar quarter, a Certificate of Cont inuing Program Compl iance in a form
substantially similar to Exhibit No. 4 attached hereto, stating: (a) the number and
percentage of Affordab le Units in the Project· which were occupied by Very Low, Low
and Moderate Income Tenants, or held vacant and available for occupancy by such
Tenants during said period; and • {b} that to the knowledge of the Affordable Housing
Owner, no default has occurred under the provi sions of this Agreement; and (c) such
other information as may be requested in writing by the City Manager. ·
2.15.3 Owner and Affordable Housing Owner shall prepare and submit to
the City, on an annual bas is, a report in form and substance reasonab ly satisfactory to
the City, not later than March 31st of each year for the preceding calendar year,
summariz ing the vacancy. rate of the Affordable Units in the Project on a inonth-to-
month basis for such calendar year.
2.15.4 Owner and Affordable Housing Owner shall also deliver to City from
time to time any other information about the Affordab le Units and the rental thereof as
may be reasonably requested in writing by City within ten (10) days after any such
written request. ·
ART ICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or the
Affordable Housing Owner or a single third-party management agent with demonstrated
ab i lity to operate, and experience in operating, res idential housing including restricted
affordable housing, in a manner that will provide decent, safe and sanitary residential
faci lities to occupants thereof, including experience in complying with reporting
requirements and occupancy restrict ions similar to those imposed upon the Project by
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the tel')'lls of this Agreement. (There may only be one manager for the entire Project at
any one time.}
3.2.2 The Owne r or t he Affordable Hous ing Owner, directly or through an
affiliate, may be the "manager" of the Project. The Owner and the Affordable Housing
Owner may reta in on-site personnel and other consu ltants and service providers to
assist Owner and the Affordable Housing Owner to operate the Project effectively and in
compliance with the provis ions of this Agreement and state and federal law.
3.2 .3 In the event that Owner or Affordable Housing Owner seeks to
appoint a replacement management entity to manage the Project, they shall advise the
City of the identity of any such qualified management agen t not later than thirty (30}
days prior to the effective date of such appointment. The Owner and the Affordable
Housing Owner shall also subm it such add it ional information about the background ,
exp erience a nd financial condition of any proposed management agent a·s is reasonably
requested by the City.
3.2.4 Upon the City's written request, the . Owner and the Affordable
Housing Owner shall coope rate with the City in an annual review of the management
practices and status of Project. The purpose of each annua l review will be to ena.ble the
City to _determine if the Project is being operated and managed in accordance with the
requirements and standards of this Agreement.
3.3 Day-to -Day Management Respons ibility. The following procedure shall be
foll owed to e nsure effective day-to-day operation of the Project and cooperation among
the City, the Owner, the Affordable Housing Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a res ident manager who will report to
the management agent.
3.3.2 There will be regula r meetings as necessary between the Owner,
the Affordable Housing Owner and the management agent for the purpose of reviewing
policies, procedures, res ident relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number
and email address of the management agent (so that City may contact the management
agent directly}, and shall cause the management agent or its personnel to be available
on a twenty-four hour a day basis to respond to City inquiries .
3.4 Staffing Arrangements . Owner and Affordable Housing Owner shall
provide for adequate on -site staffing of management personnel to manage the Proj ect in
a prudent and businesslike manner. In addition, Owner and Affordable Housing Owner
shall provide such security services as may be necessary or appropriate for the Project.
All hiring of on -site personnel shall conform to appl icable equal opportunity guidelines,
without regard to race , religion, color, national origin or sex . All hiring materials will
ind icate that the Project is an "Equal Opportunity Employer." Employment grievances,
terminations and promotion s will be conducted according to personnel policies and
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procedures whic h conform with equa l opportunity laws . All personnel emp loyed at the
Project will receive training specific to Owner's policies and procedures .
3.5 City Ability to Modify. If the Proj ect is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to chang e the General Plan designation and zoning of
the Property, and Owner and Affo rdable Housing Owner hereby waive any rights they
might oth erwise have to se ek judicial review of such City actions to change the
development standards, General Plan designation and zoning to those development
standards and density of permitted development to that in existe nce prior to the
approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone Cha nge
No . 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee . Upon the issuance of a Zoning
Clea rance by the City for occupancy of the first un it of the Project, and on each
anniversary thereof, Owner and Affordab le Housing Owner shall pay to City a single
comrryunity services fee of Eight Thousand Dollars ($8,000.00) increas·ed by two
percent (2%) on each anniversary of the Operative Date (as defined in Section 18 of the
Deve lopment Agreeme nt).
AR TICLE 4 MAINTEN ANCE
4 .1 Maintenance. Repair. A lterations . Owner arid Affordable Housing Owne·r
shall maintain and preserve the Project and the Property in good condition and repair
ar:id in a prudent and businessl ike manner. If any portion of the Project is damaged,
restoration of the damaged .improvements shall be made by Owner and Affordable
Housing Owner to a cond ition as good as existed prior to the damage. Owner and
Affordable Housing Owner shall complete promptly and in a good and w orkmanli ke
manner any improvements wh ich may now or hereafter be constructed as part of the
Project and pay when due all claims for labo r performed and material furnished therefor.
Owner and Affordable Housing Owner shall comply with all laws, ord inances, rules ,
regu lations, covenants , conditions, restrictions,. and orders of any governmental
authority now or hereafter affecting the conduct or operation of the Project and of their
businesses on the Project or any part the reof or requiri ng any a lteration or improvement
to be made thereon . Owner and Affordab le Housing Owner sha ll ma intain grounds,
sidewal ks, roads, parking, and landscaped areas in the Project (and on any ad jacent
areas owned by either of them) in good and neat order and repair. Owner and
Affordable Housing Own'er hereby agrees that City may conduct from time to time
through representatives of its own choice w ho are properly identified as agents of the
City, upon reasonable written notice and subject to reasonable security and safety
procedures and rights of tenants in possession , on-site inspections and observation of
such records of Owner and Affo rdable Housing Owner relating to the Project and the
Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of th is Agreement. Owner and the Affordable
Housing Owner shall assure that each Affordable Unit rece ives the same level of
maintenance and repair and upgrades or improvements as all other units in the Proj ect.
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The Owner and the Affordab le Hous ing Owner shall conduct an ongoing maintenance
program, which shall include the following:
a . Scheduled pre'{entative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances , electrical, plumb i ng and
heating equipment.
c . Preventative annual apartment inspections to regularly and
consistent ly ascertain the condition of each apartment unit.
p. Preventative regula r inspections of common areas and equipment
as well as regular schedules (dai ly, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti ,
litter, trash and paper. Parking areas will be ma inta i ned in good repair and free from dirt
and litter. Common areas such as hallways and laundry -rooms will be swept and
cleaned regularly and · kept free of trash and other debris. Garbage removal will be
provided through arrangements with a contractor, consistent with applicable City
ordinances. The trash areas will be swept regularly and scrubbed with dis infectant
when necessary. Extermination services will be contracted with to provide pest control
consistent w ith high quality apartment management practices.
e. Contract \Yith a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units . shall be based on need, substantiated by the annual physica l
inspection, or as occupancy changes, or as the Owner and Affordable Housing Owner
or their management agent may otherwise deem necessary.
g. Owner and Affordable Housing Owner will employ a maintenance
work order procedure i n the Project to adequately document requests for work and
promptness within which the work has been comp leted.
4.2 Disclaimer. Nothing in this Agreement shall make City respons ible for
maki ng or comp leting cap ital repairs or replacements to the Project or the Property or
require City to expend funds to make or comp lete the same.
ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full fo rce and effect
for the Term.
ARTICLE 6 DEFA ULT AND REME DI ES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Defau lt" by the Owner hereunder:
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6.1.1 Failure by the Owner or Affordable Housing Owner to duly perform,
comply with and observe the cond it ions of Project approval, conditions , terms , or
covenants of the Deve lopment Agreement or this Agreement, if such failure remains
uncured thirty (30) days after written notice of such failure from the City in the manner
provided here in or, with respect to a default that cannot be cured within thirty (30) days,
if the Owner or Affordable Housing Owner fails to commence such cure within such
thirty (30) day period or thereafter fails to diligently and continuously proceed with such
cure to completion. In no event shall the City be precluded from exercising remedies if
an Event of Default is not cured within ninety (90) days after the first notice of def~ult is
given or such longer period as may be agreed upon by both parties in writing. If a
d ifferenl period or notice requirement is specified under any other section of this
Agreement, then the specific provision shall control.
6.1.2 Failure by Owner and the Affordable Housing Owner to cure any
default under Section 2.15 within fifteen (15) business days after written not ice ·of such
default by City. .
6.1 .3 Any representation or warranty contained in this Agreement or in
any application , financial statement, certificate , or report submitted to the City by Owner
or Affordable Housing Owner proves to have been incorrect in any material respect
when made,. if such fai lure remains uncured thirty (30) days after written notice of such
failure from City to Owner in the manner provided herein or, with respect to a default
that cannot be cured within thirty (30) days, if the Owner and the Affordable Housing
Owner fail to commence such cure within such thirty (30) day period or thereafter fail to
diligently and continuous ly proceed with such cure to completion.
6 .1.4 A court having j urisdiction shall have made or rendered a decree or
order (a) adjudging Owner or Affordable Housing Owner to be bankrupt or insolvent; (b)
approving as properly filed a petition seeking reorganization of Owner or Affordable
Housing Owner or seeking any arrangement on behalf of the Owner under the
bankruptcy law or any other applicable debtor's relief law or statute of the United States
or of any state or other jurisdiction which is not dismissed within sixty (60) days after
fil ing ; (c) appointing a receiver, trustee, liquidator, or assignee for the benefit of creditors
of the Owner or Affordable Housing Owner in bankruptcy or insolvency or for any of its
properties which (or who) is not discharged within sixty (60) days after its appo i ntment;
or (d) directing the winding up or liquidation of the Owner or Affo rdable Housing Owner,
providing , however, that any such decree or order described in any of the forego i[lg
subsections shall have continued unstayed or undischarged for a period of ninety (90)
days. ·
6 .1.5 The Owner or Affordable Housing Owner shall have assigned its
assets for the benefit of its c reditors or suffe red a sequestration or attachment or
execution on any substantial part of its property , unless the property so ass igned ,
sequestered , attached , or executed upon shall have been returned o r released with in
ninety (90) days after such event (unless a lesse r time period is pe rmitted for cure
hereunder) or prior to sa le pursuant to such sequestration , attachment, or execution. If
the Owner or Affordable Housing Owner is diligently working to obtain a return or
88
release of the property and the City's interest hereunder is not i mminently threatened in
the City's reasonable business judgment, then the City shall not declare a default under
this subsection .
6.1.6 The Owner or Affordable Housing Owner shall have voluntarily
suspended its business for a period of. thirty (30) consecut ive days or dissolved and a
subsequent owner has not assumed the obl igations of Owner or Affordable Housing
Owner {if appl icab le) in acco rdance with this Agreement.
6.1 .7 Shou·ld any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Proj ect or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicab le cure pe riod, if any , granted in the app licable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in prio rity to any lien or
encumbrance on the Property {other than the Development Agreement) and all liens
and encumbrances shall be subordinate and st,ibject to this Agreement, regard less of
actual date of recordation. The City shall cons ider in good faith, reasonable
modifications of this Agreement typically requ ired by secured lenders . and commonly
known as "mortgagee protection• provisions; however, in no event shall any such
modification shorten the term of this Agreement or cont ain or require any subordination
of provisions of this Agreement.
6.2.2 Owner and Affordable Housing Owner shall pay and promptly
discharge when due, at their cost and expense , all l iens, encumbrances and charges
upon their respective interests in ·the Project or the Property, or any part thereof or
interest therein {except the lien of any mortgage, deed of trust or other recorded
instrument securing any construction or permanent financing for the Project, which
shall, in any event, be junior and subordinate to th is Agreement), provided that the
existence of any mechanic's , laborer's, materialman's, supplier's, or vendor's lien or
right thereto shall not constitute a violation of this Section if payment is not yet ·due
under the contract which is the foundation thereof and if such contract d'oes not
postpone payment for more than forty-five (45) days after the performance thereof.
Owner and Affordab le Housing Owner shall have the right to contest in good faith the
validity of any such lien , encumbrance or charge , provided that within ten (10) days after
service of a stop notice or ninety (90) days after record ing of a mechanic's lien, Owner
or Affordable Housing Owne r shall deposit with City a bond or other security reasonably
satisfactory to City in such amounts as City shall reasonably require , but no more than
the amouQt required to .release the lien under California law and prov ided further that
Owner or Affordable Hous i ng Owner shall thereafter diligently proceed to cause such
lien , encumbrance or charge to be removed and discharged, and shall , in any event,
cause such lien, encumbrance or charge to be removed or discharged not later than
sixty (60) days prio r to any foreclosure sa le. If Owner or Affordable Hous ing Owner
shall fai l either to remove and discharge any such lien, encumbrance or charge or to . '
89
deposit security in accordance with the preced ing sentence, if applicab le, then, in
addition to any other right or remedy of City, City may, but shall not be obligated to,
discharge the same , ·without inquiring into t he val idity of such lien, encumbrance or
charge nor into the ex istence of any defense or offset thereto , either by paying the
amount claimed to be due, or by procuring the discharge of such lien, encumbrance or
charge by depositing in a court a bond or the amount or otherwise giving security for
such claim , in such manner as is or may be prescribed by law. Owner and Affordable
Housing Owner shall , immediately upon written demand thereof by City, pay to City an
amount equal to all costs and expenses incurred by City in connection with the exerc ise
by City of the forego ing right to d ischarge any such lien, encumbrance or charge . To
the extent not paid, all costs and expenses pa id by the City shall t;>e a lien on the
Property pursuant to Civil Code Sect1on 2881.
6 .3 Costs of Enforcement. If any Event of Default occurs, ahd is continuing ,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non -prevail in g party promises to pay to the
prevailing party, on demand; the fees and expenses of such attorneys and all other
costs of enforcing the obligations secu red he reby includ ing w ithout limitatio n, recording
fees , receiver's fees arid expenses , and a ll other expenses of whatever kind or nature , ·
incurred by the prevailing party in connection with the enforcement of this Agreement,
whether or not such enforcement includ es the filing of a lawsuit.
6.4 Enforcement of this Agreement: Remedies. Upon the occurrence of any
Event of Default by Owner or Affordable Housing Owner, City shall be entitled to
enforce performance of any obligation of Owner or Affordable Housing Owner arising
under this Agreement and to exercise all rights and powers under th is Agreement or any
law now or hereafter in force. Addit ionally, without limiting any of City's other rights or
remedies , upon any leasing of a particular Affordable Unit in violation of this Agreement,
then Affordable Housi ng Owner shall pay the City a single fee of $10 (which shall
increase by $2 every five (5) years) per ·day until the violation has been cured (it being
understood that if the Affordable Unit is unavailable due to material damage or
destruction, Section 2.8 .6 above shall govern). Additionally, City shall be entitled to
recover from Affordab le Housing Owner and Owner, in addit ion to enforcement costs
and any other damages to which City may be entitled, all rent charged by Owner in
excess of the renta l amounts permitted under this Agreement, with interest thereon from
the date paid to Affordable Housing Owner until the date paid by Affordab le Housing
Owner to City at the lesser of eight percent (8%) per annum or the maximum rate
pe rmitted by law. Affordable Housing Owner and Owner stipulate, acknowledge and
agree that the amounts described herein are reasonable estimates of the minimum
damages incurred by the City and public as a result of violalion(s), and that actual
damage would be impractical or imposs ible to determine with accuracy. No remedy
herein conferred upon or reserved to City is intended to be exclusive of any other
remedy herein or by law provided or permitted , but each shall be cumulative and shall
be in add ition to every other remedy given hereunder or now or hereafter existing at law
or in equity or by statute. Every power or remedy given by th is Agreem ent to the City
may be exercised , concurrently or independently, from tim e to time and as often as may
be deemed expedient by the City, and the City may pursue inconsistent remedies. The
90
City shall have the right to mandamus or other suit, action or proceeding at law or in
equity to requ ire the Owner and the Affordab le Housing Owner to perform its obligations
and covenants under this Agreement or to enjo in acts or things which may be unlawful
or in violation of the provis ions hereof.
ARTICLE 7 GENERAL PROV ISIONS
7 .1 Notices. All not ices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputab le overn ight messenger service, addressed as follows:
If to the City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: Ciiy Manager
If to the Owner or the Affordable Housing Owner:
ESSEX MOORPARK OWNER. LP.
Attention: John D. Eudy
1100 Park Place, Suite 200
San Mateo, CA 94403
With required copies to:
ESSEX PORTFOLIO, L.P.
Attention: Jordan Ritter
1100 Park Place, Suite 200
San Mateo, CA 94403
and
ESSEX MOORPARK OWNER, L.P.
Attention: Bob Linder
17541 Derian Avenue, Suite 110
Irvine, CA 92614
Either party may change its address for notices by a written notice · given in
accordance with this Sectio n. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery as s hown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by
overnight messenger).
7.2 Re lationship of Parties. Nothing contained in this Agreement shall be
interpreted or unde rstood by any of the part ies, or by any third persons , as creating the
relation·ship of employer and employee, principal and agent, limited or general
partnership , or joint venture between the City and the Owner or the City and the
91
Affordable Housing Owner, or the City and any agents, employees or contractors of ihe
Owner or Affordable Housing Owner, and the Owner and the Affordab le Housing Owner
shall each at all times be deemed an independent contractor and shall be wholly
responsible for the manner in wh ich ii or its agents, o r both, perfo rm the services
required of it by the terms of this Agreement for the operation of the Project. The Owner
and the Affordable Housing Owner have and hereby reta in the right to exercise full
control of employment, direction, compensation and discharge of.all persons assisting in
the perfo rmance of services hereunder. In regards to the on-site operation of the
Project, the Owner and the Affordable Housing Owner shall be solely'responsible for all
matters relating to payment of its employees, including compliance with Social Security,
withho lding and all other laws and regulations governing such matters. The Owner and
the Affordaole Housing Owner each agrees to be solely responsible for its own acts and
those of its agents and employees.
7.3 No Claims. Noth ing contained in this Agreement shall create or justify ar:,y
claim against the City by any person the Owner or the Affordable Housing Owner may
have employed or with whom the Owner or the Affordable Housing Owner may have
contracted re lative to the purchase of materials, supplies or equipment, or the furnishing
or the perfonnance of any work or services with respect to the operation of the Project
or the Property.
7.4 [INTENTIONALLY OMITTED]
7 .5 Limitation of Liabil ity.
7.5.1 No member, officia l, employee, agent or attorney of the City shall
be personally liable to the Owner, or any successor in interest, or the Affordab le
Housi ng Owner, or any successor i n interest, in the event of any default or breach by
the City or for any amount which may become from the City or successor or on any City
obligation under the tenns of this Agreement. No member, official, emp loyee, attorney,
partner or consultant of the Owner or the Affordab le Housing Owner shall be personally
liable to City in the event of any default or breach by Owner or for any amount whic;h
may beconie due to City or its successor, or on any obligations under the terms of this
Agreement or Development Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, {i) the liability of Owner and Affordable Housing Owner
under this Agreement to any person or entity, including, but not limited to , City and its
successors and assigns, is limited to their interests in the Project and the Property, and
such persons and entities shall look exc lusively thereto, or to such other security as
may from lime to time be given for the payment of obligations arising out of this
Agreement or any other agreement securing the obligations of Owner or Affordable
Housing Owner, under this Agreement, {ii) from and after the date of this Agreement, no
deficiency or other personal judgment, nor any order or decree of specific performance
{other than perta ining to this Agreement), shall be rendered aga inst Owner or Affordable
Housing Owner, or their assets (other than the ir interests in the Project, and this
Agreement), in any action or proceeding arising out of this Agreement.
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7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeu re. As used herein "force majeure" shall mean a delay in
performance hereunder due to.acts of God, fire , earthquake, f lood , extreme weather
cond itions, explosions, war, invasion, insurrection , riot, mob vio lence, sabotage , acts of
terrorism, vandal ism, malicious mischief, inability to procure or general shortage of
labor, equipment, facilities , materials or suppl ies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation, ,
requisition , governmental restrictions including, without limitation , inability or delay in
obtaining government consents or permits, laws or orders of governmental, civil , military
or naval authorities, or any other cause, whether similar or dissimilar to the forego ing ,
not within the party's contro l, other than lack of or inability to procure monies to fulfill its
~ommitments o r ob ligations under this Agreement. ,
7 .7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers , employees or agents ,
Owner and the Affordable Housing Owner shall defend, indemnify and hols:J City
harmless from and against any and all claims, losses, damages, liabilities, costs and
expenses arising directly or indirectly from, or re lating directly or indirectly to: (i) any
failure by Owner or Affordable Housing Owner to comp ly with the terms of this
conde m nation Agreement; (ii) the construction , maintenance, alteration or operation of
the Project; (i ii) any negligence or willful misconduct by Owner, Affordable Housing
Owner or any of their employees , agents, contractors , licensees, invitees or tenants on
the Project or the Property .
7 .8 Rights and Remedies Cumulative. Except as otherwise express ly stated
in this Agreement, fhe rights and remedies of the parties are cumu lative, and the
exercise or failure to exercise one or more of such rights or remedies by either party
shall not preclude the exercise by it, at the same time or different times, of any right or
remedy for the same default or any other default by the other party . No waiver of any
default or breach hereunder shall be impl ied from any omission to take action on
account of such default if such default persists or is rep eated , and no express waiver
shall affect any default other than the default specified in the waiver, and such wavier
shall be operative only for the time and to the extent therein stated. Waivers of any
covenant, term , or condition contained herein shalrnot be construed as a waiver 6f any
subsequent breach of the same covenant , term or cond ition . The consent or approval
by the City to or of any act by the Owner or Affordable Housing Owner requ ir ing further
consent or approval shall not be deemed to waive or rende r unnecessary the consent or
approval to o r of any subsequent simi(ar act. The exerc ise of any right, power, or
remedy shall in no event constitute a cure or a waive r of any defau lt under this
Agreement, nor shall it invalidate any act done pursuant to notice of default, or prejudice
the City in the exercise of any right, power, or remedy hereunder. ·
7.9 Enforcement: Waiver. The City may take whatever action at law or in
equity a s may be necessary or desirable to enforce perfo rmance and observance of any
obligation, agreement or covenant of the Owner or Affordable Hous ing Owne r under this
Agreement. No delay or omission to exercise any right or power accru i ng upon any
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default shall impair any such right o r power or shall be construed to be a waiver of such
right or power, but any such right or power may be exercised from time to time and as
often as City may deem expedient. In order to entitle the City to exerc ise any remedy
reserved to it in this Agreement, it shall not be necessary to g ive any notice, other than
such notice as may be herein expressly required or required by law to be given.
7.10 Severability. If any term, prov ision , covenant or condition of this
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid ,
void or unenforceable, the remaining pr.ovis ions shall continue in full force and effect
unless the rights and obl igations of the parties have been mate rially altered o r abridged
by such invalidation, void i ng or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recove r against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without lim itation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resu lting judgment).
7 .12 Binding Upon Successors: Assignment by City. This Agreement , and. the
exhibits attached hereto, shall run with the land and be bin.ding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference i n th is Agreement
to Owner or Affordable Housing Owner shall be deemed to app ly to any successor or
assign or successor-in -interest of such party who has acquired any portion of or interest
in the Project. . Without limiting the forego ing, City may assign this Agreement to the
A rea Housing Autho rity of the County of Ventura 6r any other housing authority creat ed
by City or in which City is a member. · ·
7.13 Binding Effect: Successors and Assigns . Owner and Affordable Housing
Owner each covenant and agree for itself, and .its successors and assigns and every
successor in interest to any portion of or interest in the Project that it and its successors,
assigns and successors in int erest shall comply w ith all of the terms , provisions,
easements, conditions, covenants, restrict ions, liens, and servitudes set forth in this
Agreement. This Agreement is inte nded to bind the Project and Property "run with the
land".
7.14 Transfers. Owner shall provide the City with prompt notice of any
conveyance of Affordable Units to the Affordable Housing Owner, with a copy of the
applicable deed. Owner shall provide the City with at least thirty (30) days' prior written
not ice of any sale or transfer of the Project or the Property or any portion thereof. The
Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer , but no consent of the City shall be requ ired for any
transfer of Affordable Units to an entity of wh ich the Essex Portfolio, L.P. or any affiliate
thereof, directly or indirectly, owns or controls the entity to wh ich the transfer will be
made, provided that the City is given a copy of the Assignment and Assumption
94
Agreement and organizationa l documents that prove the entity is such an affiliate of
Essex l?ortfolio , L.P .
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with
respect to the matters described herein and the rein.
7.17 Construction and Interpretation of Agreement. The parties hereto
ack nowledge and agree that this Agreement has been prepared jointly by the parties
and has been the.subject of arm's length and careful negotiation over a considerab le
period of time, that each party has rev iewed this Agreement with legal counsel, and that
each party has the requisite experience and sophistication to understand, interpret and
· agree to the particular language of the provisions of this Agreement. Accordingly, in the
event of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654 , this Agreement sha ll not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7 .18 Controlling Law: Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of
California, without regard to conflict of law provisions, except to the extent federal law
applies. Venu~ for any action brought under this Agreement will be in the Superior Court
for the County of Ventura, California or in the United States District Court for the Central
District of California. Owner and Affordable Housing Owner each hereby accepts for
itself and in respect to its property, generally and unconditionally, the non-exclus ive
jurisdiction of the foregoing courts. Owner and Affordable Housing Owner each
irrevocably consents to the service of process in any action or proceeding by the mailing
of copies thereof by registered or certified mai l, postage prepaid , to Owner and
Affordable Housing Owner at its address for notices pursuant to this Agreement.
Nothing contained herein shall affect the right of the City to serve process in any other
manner permitted by law. ·
7 .19 Hazardous Materials.
7 .19.1 Definitions. The following special definitions shall apply for. the
purposes of th is Section:
(a) "Hazardous Materials" shall mean:
(1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601(14)) or Section 25281(d) or 25316 of
the California Health and Safety Code at such time ;
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(2) any "hazardo us water," "i nfectious waste" or "hazardous
material" as defined in Section 25117, 25117.5 or 255010) of the
Californ ia Health and Safety Code at such time;
(3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous• in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Sect ion 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
(4) Any add itional wastes, substances or materia l wh ich at such
time are c lassified, considered or regu lated as hazardous or toxic under
any other present or future environmental or other similar laws relating to
the Project or the Property. ·
(b) "Hazardous Materials Laws" means all federal, state, and local
laws, ordinances, regulations, orders and d irectives pertaining to Hazardous
Materials, in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner and Affordab le Housing Owner hereby agree that: .
(a) Ne ither shall knowing ly permit the Project, the Property or
any portion thereof to be a site .for the use, generation, treatment, ma nufacture, storage,
disposal or transportation of Hazardous Materia ls or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction maierial.s, gardening materials, household products, office supply products,
or janitorial supply products customari ly used in the construction, ownership, operation,
maintenance, or management of residential ·developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparab le to the Project; or (2) certain substances which
may contain chemicals listed by the State of California pursuant to Health and Safety
Code Section 25249.8 et seq., which substances are commonly used by a significant
portion of the population living within ttie reg ion of the Project, including (without
limitation) a lcoholic beverages, aspirin, tobacco products, and saccharine.
(b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be i n violat ion of, any
Hazardous Materials Laws.
(c) Upon receiving actual know ledge of the same, t he Owner or
Affordable Housing Owner shall immediately advise the City in writing of: (1) any and
all enforcement, cleanup, removal or other governmental or regulatory actions instituted,
96
completed or threatened aga inst the Owner or the Proj ect or the Property pursua nt to
any applicab le Haza rdous Materials Laws ; (2) any and all claims made or threatened by
any third party against the Owner or Affo rdable Housing Owne r or the Project or the
Property relati ng· to damage, contribution , cost recovery, compensation , loss o r injury
resu lting from any Hazardous Materials (the matters set forth in the forego ing clause (1)
and this clause (2) a re hereinafter referred to as "Hazardous Materials Claims "); (3) the
presence of any Hazardous Materials in, on cir under the Project or the Property; or (4)
the Owner's or the Affordabl e Housing Owner's discovery of any occurrence or
condition on any real · property adjoining or in the v icinity of the Project class ified as
"borderz one property" under the provis ions of California Hea lth and Safety Code,
Section 25220 et seq ., or any regu lation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership , occupancy, transferab ility or use
of the Project or the Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner and Affordable _ Housing Owner hereby agree to
indemnify, protect, ho ld harmless and defend (by counse l reasonably approved by the
City) the City, and its City Council membe rs, officers, employees, contractors , agents
and attorneys from and aga i nst any and au claims , losses, damages, liabilities, fines,
penalties, c harges , administrative and jud icial proceedings and orders, judgments,
remed ial action requirements, enforcement actio ns of any kind , and all costs and
expenses incurred in connection the rewith , including , but not limited to , reasonable
attorneys' fees and expenses(collective ly , a "Loss"), arising directly or indirectly, in
whole or-in part, out of (1) the failure of the Owner or the Affordable Housing Owner, as
applicable, or any other pe rson or entity occupyi ng or prese nt on their respective
interest in the Project or Property , to comply with any Hazardous Materials Law re lating .
in any way whatsoever to the handling, treatment, presence , removal, storage,
decontamiriation , cleanup, transportation or disposal of Hazardous Materials into, on,
under or from the Project or the Property; (2) the presence in," on or under its interest in
the Project or the Property of any Hazardous Materials or any releases or discharges of
any Hazardous Materials into, on, under or from its interest in the Project or the
Property; or (3) any activity carried on or undertaken on its interest in the Project or the
Property during _its ownership thereof, whether by the Owne r or the Affordable Housing
Owner or any employees , agents, contractors or subcontractors, or any third persons at
any time occupying or present on the Project or the Property, in connection with the
handling, treatment , ·removal, storage, decontamination, c leanup, transport or disposal
of any Hazardous Materials at any time located or present on or under the Proj ect or the
Property. The foregoi ng inde m nity shall further apply to any residual contam ination on
or under the Proj ect or the .Property, or affecting i3ny natural resources , and to any
contami nation of any property or natural resources arising in connection with t he
generation , use , handl ing , treatment, storage , transport or disposal of any such
Hazardous Materials on , und er, or from the Project or the Property, and irrespective of
whethe r any of such activities were or will be undertaken in acco rdance wit h Hazardous
Materials Laws . However, the forego ing indemnity shall not extend to the portion of any
Loss aris ing from the gross negl igence , fraud or willful misconduct of the City or anyone
for whose actions the City is legally liable. This Section shall survive te rmination of this
Agreement.
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7.19.4 No Limitation. Owner and Affordable Hous ing Owner hereby
ac knowledge and agree that their duties, obligat ions and liabilities under this Agreement
are in no way limited or otherwise affected bY any infonnatibn the City . may have
concerning the Project or the Property and/o r the presence within the Project or the
Property of any Hazardous Mate rials, whether the City obtained such infonnation from
Owner or Affo rdable Housing Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner and Affordable Housing Owner shall
ma intain and keep in force, at their sole cost and expense , the following insurance for
the ir respective interests in the Project, provided, however, that a Contractor's liability
policy may be used during construction provided it complies with all terms and
conditions of this Section:
(a) Comprehens ive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, comb ined si ngle lim it for
bodily injury and property damage, including coverages for contractual liability, personal
injury, broad form property damage, products and completed operations. Beginning on
the fifth anniversary date of the reco rdation of this Agreement, and thereafter every five
(5) years, the policy limits shall be increased by ten percent (10%) of the then-current
limit.
(b) Comprehens ive automob ile liability insurance with limits not
less than $2 ,000 ,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non -owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percerit (10%)
of the the·n-current l imit. ·
(c) Worker's compensation insurance , fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily ma intained on like kind
and sized apartment projects within the City .
. (d) A po licy or policies of insurance against loss or damage to
the Project resulting from fire, windstorm, hail , lightning , vandalism , malicious mischief,
and such other perils ordinarily i n.eluded in extended · coverage casualty insurance
policies. In addition, if Owner or Affordable Housing Owner carries cove rage voluntarily
for additional causes (such as earthquake, riot, civil commotion or other), such coverage
shall be treated in all respects as the policy or polic ies required to be kept under this
pa ragraph (d) for so long as it continues to voluntarily carry such coverage. All
insurance hereunder, except earthquake insurance, shall be maintained in an amount
not less than one hundred percent (100%) of the Full Insurable Value of the Project as
defined below (such val ue to include amounts spent for construction of the Project,
architectural and engineering fees, and inspection and supervision). "Full Insurable
Value of the Project" shall mean the actual replacement cost excluding the cost of
excavation, foundation and footings be low the ground level of the Project. To ascertain
98
the amount of coverag.e required , Owner and Affordable Housing Owner shall cause the
Full Insu rable Value to be determi ned from time to t ime, but in no event less often than
once each five (5) years, by appraisal by the insu rer or by any appraiser mutually
acceptable t o. City, Owner and Affordable Hous ing Owner; except that no such
appraisals shall be required if the policy is written on a "replacement cost" basis.
7.20 .2 General Requirements. The insurance requ ired by this Section
shall be provided under an occurrence form , and Owner and Affordable Hous ing Owner
shall maintain such coverage continuously so long as this Agreement is in force.
Should any of the requi red insurance be provided unde r .a form of coverage that
includes an annual aggregate limit or provides that claims investigation or legal defense
costs be included in such annual aggregate limit, such a nnual aggregate limit shall be
one and one-half times the occurrence limits specified above. All po l icies shall be with
an insurance carrier licensed and admitted to do business in California and rated in
Best's Insurance Guide, or any successor thereto (or if the re be none, an organization
having a national reputat ion) as h.aving a "Best's Rating" of "A " and a "Financial Size
Category" of at least "VII " or if such rati ngs are not then in effect, the equivalent thereof.
7 .20.3Additional Insured. The City shall be named as an additional
insured on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee.
Comprehensive general liabil ity po li cies shall also be en.dorsed to name as additional
i nsureds· the City, and its qty Council members, officers , agents and emp loyees. All
policies shall be endo rsed to provide· thirty (30) days prior written notice of cancellation ,
reduction in coverage , or intent not to renew to the address established for notices to
the City pursuant to Section 7 .1 of this Agreement.
7 .20.4 Certificates of Insurance. Upon t he City's request at any time
during the Term of this Agreement, Ow ner and Affordable Housing Owner shall prov ide
certificates of insurance, i n form and w ith insurers reasonably acceptable to the City;
evidencing comp li ance w ith the requ irements of this Sect ion , and sha ll provide complete
cop ies of such insurance policies, including ·a separate endorsement approved by the
City Manager or his/her designee, as indicated in Section 7.20.3, naming the City as an
additional insured.
7 .21 Burden and Benefit. City and Owner and Affordable Housing Owner
hereby declare their understanding and intent of the bu rden of the covenants set forth
herei n touching and conceming the Project and the Property.
7 .22 Amendments. Changes and modifications to this Agreement shall be
made only upon the written mutual consent of the Parties. However, no changes shall
be made to this Agreement which would adversely affect any bonds issued under this
Project without the written consent of all appropriate parties with respect to any bo nd
issuance .
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7 .23 No Th ird Party Beneficia ries. This Agreement shall not benefit or be
enforceable by any person, or firm , or corporat ion , p ublic or private, except the City,
Owne r, Affordable Housing Owner and their re spective successors and ass igns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7 .25 Assessme nt Dist ricts: Covena nt and Waivers. Owner and Affordab le
Housing Owner agree to cast affirmative ballots for the increase of a ny assessment for
existing assessment districts for the maintenance of parking and median landscaping,
st reet lighting and parks conferring special benefits, and for t he formation of any new
assessment district · for such purposes , in orde r to supplement then -existing
assessments upo n properties within the Project. Owner and Affordab le Ho using Owner
hereby waive any right they or either of them may have to contest or protest s uch
assessments or any assessment increases. lh the event that any such assessment
_dfstrict has · insufficient funds for its purposes , then Owne r and · Affordable Housing
Owne r shall pay the fu nds that the assessment district requ ires td ·the assessment
district within five (5) business days after written demand from the assessment district
from time to time .
ART ICLE 8 IN CORPORATI ON OF CERTAIN DEVELOPMEN T AGREEME NT
PROV ISIONS
T he term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term " in Section 1.1
above). The following provisions of the Development Agreement are hereby
incorporated here in to clarify that they survive the expiratio n of the Development
Agreement (but, except for Sections 8.1, 8.4 and 8.7 , such provi.sions will not survive
a ny earlier termination of the Deve lopment Agreement due to a default by the
"D~veloper'' thereunder) and continue until the expiration (or earlier termination) of this
Agreement, it being understood that all of the rights and benefits of Owner and
Affordable Housi ng Owne r under the following (except for obligations there under arising
prior to termination and Sections 8.1, 8.4 and 8. 7) shall terminate upon any early
terminati on of the Development Agreement due to a default by Owner or Affordable
Housing Owner thereunder.
8.1 No Other Separate Conveyance of Affordab le Un its. After the initia l
conveyance by Owner to Affo rdable Housing Owner of Affordable Units , Owner and the
Affordable Housing Owner and their success ors in interest shall not convey thei r
respective portions of the Property separately , but shall only convey them concurrently
and to the same purchaser, only to a purchaser reasonably approved in writing by City
(wh ich will consider the reputation and experience of the purchaser in owning and
operating affordab le rental units). ·As a condition to the initia l conveyance by Owner to
Affordable Housing Owner of Affordab le Units, Owner and Affordable Housing Owner
shall execute , acknowledge and record (i) a separate agreement (i .e ., a covenant and
agreement to hold property as one parce l) imposing the forego ing restriction on the
Property , which shall be subject to the written approval of City , and (ii) "co nditions,
100
• covenants and restrictions" for the Project ("CC&R 's"), which shall also be subject to the
written approval of City. Such sepa rate agreement and CC&R's shall be senior to any
and all deeds of trust and other liens ( except property taxes and assessments not yet
due).
8.2 Development of the Property. The following provis ions shall govern the
subd ivis ion , developmel)t and use of the Property.
8.2.1 Permitted Uses . The permitted and condit ionally pe rmitted uses of
the Property shall be limited to those that are allowed by the Proj ect Approvals and the
Developme nt Agreement. ·
8.2.2 Developme nt Standards. All design and development standards,
including but not limited to density or intens ity of use and max imum height and size of
buildings, that s hall be applicable to . the Property are. set forth in the Proj ect Approvals
and the Development ~greement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or pe rmit is approved per Title
15 of the Moorpark Municipal Code a nd to any federal or state build i ng requirements
that are then i n effect (collectively "the Building Codes"). . .
8.2.4 Reservations and Dedications. All reservations and ded ications of
land for publ ic purposes that are applicable to the Property are. set forth in the Proj ect
Approvals and the Development Agreement.
8.3 Dens it ies Allowed for Development. Owner and Affo rdable Housing Owner
agree that densities vested and incentives and concess ions received in the Project
Approvals include all densities available as dens ity bonuses and · all incentives and
concessio ns to wh ich Developer is entitled under the Moorpark Municipal Co(le,
Government Code Sections 65915 through 65917.5 or both; neither Owner nor
Affordable Hous ing Owner shall be entitled to further density bonuses or incentives or
concessions and further agrees that its exE1cution of and complia nce with th is
Agreement is in consideration for the density bonus obtained through the Proj ect
Approvals that is greater than would otherwise be avai lab le. Residential Planned
Development Permit No. 2012 -02 , includ ing the special cond itions that incorporate and
inc lude all of the requirements set forth in this Agreement are part of the Project
conditions of approval and not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
bui lding permit or the approval of any final map for the Project: (a) Owner and
Affordable Housing Owner shall pay the Cfty a s i ngle Five.Thousand Dollar ($5,000)
Assessment Dist rict Formation Fee; and (b) either two Assessment Districts (one fu lly
funded and a second "back-up" district) o r one Assessment District containing two
zones (one zone to be fully funded and the other to be a back up zone), as determined
by the City at the City's discretion, shall be formed that includes the Property . T he first
Distri ct out of th e two Districts or the first zone of the one District , whichever is
101
applicable, shall be for the purposes of funding future costs for the ma intenance
. landscaping and irrigation of the landscaped area above the retain ing wall along the
southern perimeter of the Property and th e maintenance of the storm wate r quality basin
and drainage improvements, includ ing bas in la ndscaping and irrigation . The second
District or second zone of the District , whichever is applicable, sha ll be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjace nt to the Walnut Canyon School, the maintenance of the storm
wate"r basin access drive and the emergency access drive . It shall be the intent of the
City to approve the requi red assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for
the that fiscal year. The City shall administer the an nua l renewal of the Assessment
District or Districts, and any costs re lated to such administration s hall be charged to the
fund ·established for such Assessment District revenues and expenses. Owner and
Affordable Housing Owner agree to cast affirmative ballots for the establishment of both
Assessment Districts, or both zones of the one District, as applicable, and for annual
increases In the assessments thereunder, for the purpose·s specified in this subsection.
Owner and Affordable Housing Owner hereby waive any right they may have to contest
or protest any such assessments or assessment increases. In the event that any such
Assessment District has insufficient funds for its purposes, then Owner or Affo rdable
Housing Owner sh all pay the funds required to the Assessment District within five (5)
business days after written demand from the Assessmen t District from time to time.
Owner and Affordable Ho using Owner also agree to add · this language to any
Regulatory Agreement as part of the sale of any bonds issued by the City for the
Project. · ·
8.5 Fee Protest Waiver. Owner and Affo rdab le Housing Owner agree that any
fees and payments pu rsuant to the Deve lopment Agreement, this Agreement and for
RPD 2012 -02 shall be made without-reservation , and De veloper expressly waives t he
right to payment of any such fees under protest pursuant to California Government
Code Section 66020 and statutes amendatory or supplementary theret9 .
8.6 Req uired Tenant · and Guest Parking . Owner and Affordable Housing
Owner agree to provide a total of at least 2 .00 parking spaces per unit on site . Two
parking spa.ces shall be designated and reserved for each of the 2-bedroom and 3-
bedroom un its , a nd one space sha ll be designated and reserved for each of the 1-
bedroom units, with the remainder of the spaces available for guest parking. At least
one of the parki ng spaces designated and reserved for each of the units shall be in a
garage or covered carport. There shall be no extra charges for required parking for any
units (whethe r or not th ey are Affordable Units). Owner and Affordabie Housing Owner
shall only be requ ired to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner and Affordable Housing Owner acknowledge
the City's ability to modify the development standards and to cha nge the General Plan
designation and zoning of the Property upon the termination or expirat ion of the
Development Agreement (if the Project has not been built), and Develope r hereby
waives any rights they might otherwise have to seek judicial review of such City actions
to change the development standards, General Plan designation and zon ing to those
102
development standards and density of permitted development to that in existence prior
to the approval of General Plan Amendment No. 2004-05 ("GPA 2004-05") and Zone
Change No. 2004-04 ("ZC 2004-04").
8 .8 Indemnity. Owner and Affordable Housing Owner will defend, indemnify
and hold City harmless from and against any and all cla ims, liabilities, losses, damages,
costs and expenses ·arising from any activity by Owner or Affordable Housing Owner or
the contractors of either of them .
8.9 Storm · Water/Flood Detention Basin . City agrees that Owner and
Affordable Housing Owner may use the storm water/flood detention basin located on
the City Property and depicted on Exhibit No. 5 for storm water/retention purposes for
the Project, and City shall execute and deliver a revocable license agreement to Owner
and Affordable Housing Owner to that effect; however, C ity may e lect by written notice
to Owner and Affo rdable Housing Owner to rel9cate said detention basin and any
service road and secondary access road located on the City Property at any time, and
Owner and Affordable Housing Owner shall reimburse or pay C ity for the costs of such
relocation within ten (10) business days after written demand from City from time to time
describing such costs. Owner and Affordable Housing Owner shall promptly provide a
bond acceptable to City i n the amount of such costs, as projected in good faith by City,
to ensure payment of the costs, and every two (2) years the amount of the bond shall be
increased (by amendment or by a replacement bond) by the percentage increase over
the applicable two year period in the Caltrans Highway Bid Price Index for Selected
California Construction Items, as determined in good faith by the City Manager.
WHEREFORE, the parties have executed this Ag reement as of the date first-
above written.
C ITY:
CITY OF MOORPARK
By:--,-,-----------Print Name: _________ _
Title: ___________ _
103
OWNER:
ESSEX MOORPARK OWN ER, L.P.,
a California limited partnership
By: Essex Moorpark GP, L.P.,
a Ca l ifornia limited partnership,
its general partner
By: Essex Management
Corporation,
a Cal ifornia corporation ,
its general partner
By: ________ _
Print Name: _____ _
Title: ________ _
104
A notary public or other officer
comp leti ng this certificate verifies only
th e identity of the indiv idual who
signed the documen t to which th is
certificate is attached , and not the
truthfulness , accuracy, or val idity of
tha t document.
State of California
County of Ventura
)
)
On ___________ , before me,-----------~
Onsert name a nd lille o f lhe officer)
Notary Public, personally appeared -,----------------~---'
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the in_strument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct. ·
WITNESS my hand and official seal.
Signature. _____________ _ (Sea l)
105
A notary public or other officer
completing th is certificate verifies only
the identity of the individual who
signed the document to which this
certificate is attached, and not the
truthfulness, accu racy, or validity of
that document.
State of California
County of Ventura
)
)
On ___________ , before me,-----------~
(Insert name and title of the officer)
Notary Public, personally appeared-----------------~
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the .entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature.::...• ____________ _ (Seal)
106
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 .or official records ,in the Office of the County Recorder of said
County, being a portion of Lot 'T', Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4 , Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho 'Simi , Ventura county, California" in
said City , County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER W ITH that portion of Parcel IA of in that certain Lot Line Adjustment No .
200503 in the City of Moorpark, County of Ventura , State of California, recorded May 3,
2005 as Document No . 20050503-0108315 or official records in the Office of the County
Recorder of said County, being· a portion of Lot 'T', Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said
County Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No . 2005-03,
distant thereon North 292.97 feet from the southeasterly comer thereof; ·
1st Thence , departing said east line South 89°38'32'West 752.05 feet;
2nd Thence, South 27°20'34West 36 .75 feet;
3rd Thence, South 89°03'54'West 293.78 feet to a point in the west line of said
Parcel 1A.
107
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
. TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE;
Very Low Income
Type of Unit
1-br .
2-br/2 bath
3 -br
Total
Low Income
Type of Unit
1-br
2 -br/2 bath
3-br
Total
Moderate Income
Type of Unit
1-br
2-br/2 bath
3 °br
Total
LOCATIONS OF AFFORDABLE UNITS .
Number of Units
8
7
1
16
Number of Units
11
12
1
24
Household Size
Adjustment
2 persons
3 persons
4 persons
Household Size
Adjustment
2 persons
3 persons
4 persons
Utility
Allowance
$156
$175
$199
Utility
Allowance
$156
$175
$199
(but must instead be Low Income when tax credit and/or tax
exempt bond laws apply to the ~roject)
Number of Units
0
5
Q
10
Household Size
Adjustment
2 persons
3 persons
4 persons
Utility
Allowance
$156
$175
$199
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regard less of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
Illustration : For example, the maximum rent for a Very Low Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the Ventura
County median income for a household of three divided by 12, less the utility allowance.
108
Illustration: For example , the max imum rent for a Low Income Household renting
a 2-bedroom unit would be calculated as follows : 30% x 60% x the Ventura County
median income for a househo ld of three divided by 12, less the utility allowance.
Illustration : For example , the maximum rent for a Moderate Income Household
renting a 2-bedroom unit would be calculated as follows : 30% x 110% x the Ventura
County median income for a household of three divided by 12, Jess the utility allowance.
Utility Allowances will be adjusted annually using the most current "Allowances
for Tenant Furnished Uti lities and Other Services " (form HUD -52667) based on
Apartment/Wa lk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the uriits:
Natural Gas -Heating, cooking, water heating
Water, Sewer, Trash , Othe r Electric allowance (for lights and other electric uses)
Locations of Affordable Units (Including Handicapped-Compliant Units)
The Affordable Units (including handicapped -compliant units) shall be located as
shown on the site plan attached hereto .
109
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110
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111
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112
EXHI BIT NO. 3
T O AFFORDABLE HOUSI NG AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification _____ / Recertif ication ____ _ Unit Number ___ _
I NCOME COMPUTATION AND CERTIFI CATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and A DD RESS o f Apartment B u ild in g)
To:
I/We the undersigned state that I/we have read and answered fully, fra nkl y and
-personally each of the following questions for all persons who are to occupy the .unit
being applied for in the above apartment project. Listed be low are the names of all
persons who intend to res ide in the unit:
1.
Name of Members
Of the
Household
Income C omputation
2.
Relationship
to Head of
Household
3.
Age
4.
Socia l Security
Number
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with this paragraph 6, of .
all perso ns (except children under 18 yea rs) listed above for the 12-month
period beginn ing the earlier of the date that I/we plan to move into a unit or sign a lease
fo r a unit is$ _________ 1
If this form Is being completed in acoordance with reoertification of a Lower Income Tenant's or Very Low Income Tenanrs
ocx:t1paney of a loy.,-er Income Unl or a Vory Low Income Unit. respectively, this fonn must be completed based upon the
cunent income of the occupants.
113
Included in the total anticipated iricome li sted above are:
(a) the full amount, before any payroll deductions, of wages and salaries , overtime
pay , commissions , fees, tips and bonuses and other compensation for personal
services ;
(b) the net income from t he operation of a business or profession. E xpend itµres for
business expans ion or amortization of cap ital indebtedness shall not be used as
deductions in determin ing net income. An allowances for depreciation of assets used in
a business or profess ion may be deducted, based on stra ight line depreciation, as
provided in Internal Revenue Service regulations . Any withd rawal of cash or assets
from the operation of a business or profession will be inc luded in income, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by
the family;
(c) interest and dividends and other net income of any kind from real or personal
. property. Expend itures for amortization of capital indebtedness shall not be used as
deductions in determining net income . An allowance for depreciation is perm itted only
as authorii:ed in paragraph (6)(b) of this section . Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the fam ily has net
family assets in excess of $5,000 , annual inco me shall include the greater of the actual
income derived from all net fami l y assets or a percent age of the value of such assets
based on the current passboo k savings rate.
(d) the full amount of period ic payments received from Socia l Security, annuit ies,
insurance policies, retirement funds, pensions , disability or death benefits, and other
simi lar types of periodic receipts , including any lump sum amount except deferred
period ic amounts from supplemental security income and social security benefits that
are received in a lump sum amount or i n prospective monthly amounts;
(e) payments in lieu of earnings , such as unemployment and disability
compensation , workers' compensation and severance pay;
(f) welfare assistance. If the welfare assistance payment includes an amount
specifically . des ignated for she lter and utilities that is subject to adjustment by the
welfare assistance agency in accordance with the actual cost of shelte r and utilities , the
amount of welfare assistance income to be included as income shall consist of:
( 1) the amount of the all owance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
(2) the maximum amount that the welfare assistance agency could in fact
allow the fami ly for shelter and ut ilities. If the family's welfare assistance is ratably
reduced form the standard of need by applying a percentage, the amount ca lculated
under this paragraph shall be the amount res ulting from one app licat ion of the
percentage ;
114
(g) periodic and determinab le allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from
persons not residing in the dwelling;
(h) all regular pay, special pay and allowances of a member of the Armed Forces
except the specia l pay to a family member serving in the Armed Forces except the
spec ial pay to a family member serving in the Armed Forces who is exposed to hostile
fire; and
Excl uded from s uch ant icipated income are:
(a) income from employment of children (including foste r chi ldren) under the age of
18 years;
(b) payments received for the care of foster children or foster adults (usually persons
with disabilities, unrelated to the tenant family, who are unab le to live alone); ·
(c) lump sum addit ions to family assets , such as inheritances , insurance payments
(including payments under health and accident insurance and workers' compensation),
cap ital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation , worker's compensation ·
and severance pay; ·
(d) amounts received by the family that are specifically for, or in reimbursement of, the
cost of medical expenses for any fami ly_ member;
(e) income of a live-in aide, as defined by 24 CFR §5.403;
(f) the full amount of student financial assistance paid directly to the student or to
the educational institution ;
(g) the special pay to a family member serving in the Armed Forces who is exposed
to hostile fire;
(h) (1) amounts received under training programs funded by the Department of
Housing and Urban Deve lopment;
(2) amounts received by a person with a disabiliiy that are disregarded for a
limited time for purposes of Supplemental Security Income elig ibility and benefits
because they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
(3) amounts received by a participant in other pub licly assisted programs
which are specifically for or in reimbursement of out-of-pocket expenses incurred
(special equipment , cloth ing , transportation , child care , etc.) and which are made sole ly
to allow participation in a specific program ;
(4) amounts received under a resident service stipend is a modest amount
(not to exce.ed $200 per month) received by a resident for performing a service for the
115
Public Housing Issuer or owne r, on a part-time basis, that enhances the quality of life in
the development. Such serv ices may include, but are not limited to , fire patrol, hall
monitoring , lawn maintenance, and resident initiatives coordination . No resident may
receive more than one such stipend during the same period of time;
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment tra ining programs (including
training programs not affiliated with a local government) and training of a family member
as resident management staff. Amounts excluded by this provision must be received
under employment training programs w ith clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment tra i ning program .·
(i) temporary • nonrecurring or sporadic inco.me (including gifts);
0) repa ration payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full -term student 18 years old o r older
(excluding the head of household and spouse);
(I) adoption assistance payments in excess of $480 per adopted child ; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and
equipment needed to keep the developmentally disabled family member at home; or
'
(p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to wh ich the exclusions set forth
in 24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings , stocks, bonds, equity in real property or other form of cap ital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Ind ian trust land)
_____ Yes _____ ,No; or
(b) have they disposed of any assets (other than at a forec losure or bankruptcy sale)
during the last two years at less than fair market value?
116
_____ Yes _____ No
(c) If the answer to (a) or (b) above is yes , does the combined total value of all such
assets owned or disposed of by all such persons tota l more than $5,000?
_____ Yes _____ No
(d) If the answer to (c) above is yes, state:
(1) the combined tota l value of all such assets: $ ---------
( 2) the amount of income expected to be deri ved from such assets in the 12-
month period beginning on the date of initial occupancy in the unit that you propose to
rent: $ _______ , and
(3) the amount of such income, if any, that was included in item 6 above:
$ _____ _
8. Are all of the individuals who propose to reside in the un it full-time students*?
_____ Yes _____ No
*A full -time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally ma intains a regular faculty and curriculum and
normally has a regu larly enrolled body of students in attendance or is an individua l
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
(a) If the answer to 8(a) is yes, is at least 2 of the proposed occupants qf the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No ----------
9. Ne ither myself nor any other occupant of the unit I/we propose to rent is the
owne r of the rental hous ing project in which the unit is located (hereinafter the "Owner"),
has any fami ly re lationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation , partnership, estate or trust
in proportion to the ownersh ip or beneficial interest in ·such corporation, partnership ,
estate or Trustee he ld by the ind ividua l or a fam ily member; and ownership , direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be · rel ied upon by the
Owner to determine maximum income for elig ibility to occupy the unit; and I/we declare
that all information set forth herein is true, correct and complete and based upon
information I/we deem reliab le and that ttie statement of total anticipated income
contained in paragraph 6 is reasonab le and based upon such investigation as the
undersigned deemed necessary.
117
11'. IN>Je will assist the Affordable Housing Owner in obtaining any information or
documents required to verify the statements made herein, including either an income
verification from my/our present employer(s) or copies of federa l tax returns for the
immediately preceding calendar year.
12. IN>Je acknowledge that I/we have been advised that the -mak ing of any
misrepresentation or misstatement in this declarat ion wi ll constitute a material breach of
my/our agreement with the Affordable Housing Owner to lease the unit and will entitle
the Owner to prevent or terminate my/our occupancy of ihe unit by institution of an
action for ejection o r other appropriate proceedings.
IN>Je declare under penalty of perjury that the foregoing is true and correct.
Executed this ____ d.ay of. _________ , 20 ____ (year) in the City
of Moorpark, California
Applicant Applicant
Applicant Applicant
(Signature of all persons (except children under the age of 18 years) listed in number 2
above requ ired]
118
FOR COMPLETION BY OWNER/AFFORDABLE HOUS ING OWNER ON LY:
1 . Calculation of eligible income:
a. E nter amount entered for entire household in 6 above : $ ____ _
b . (1) If the amount entered in 7(c)above is yes, enter the tot al amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3). and enter the
remaining balance ($ _____ );
(2) Multiply the amount entered in 7{d)(1) times the current passbook savi ngs
rate as determined by HUD to determine what the total annual earni ngs on the amount
in 7(d)(1) would be if invested in passbook savings($ ______ _,, subtract from
that figure t he amount ent ered in 7(d)(3) and enter th e remaini ng balance ($
(3) Ent er at ri ght the greater of the amount calculated under (1) or (2)
above :$ __________ _
c. TOTALELIGIBLE INCOME (line 1 .a plus line 1.b(3)): $_· ______ _
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Moderate-Income T enant(s).
_______ Qualifies the applicant(s) as a Lower-I ncome Tenant(s).
_______ Qualifies the applicant(s) as a Very-Low I ncome Tenant(s).
3. Number of apartment unit assigned: ____ Bedroom s ize: ____ _
Rent:$. _____ _
4. This apartment unit (was/was not ) last occupied for a period of 31 or more
consecutive day s by persons whose aggregate anticipated annual income as certifiecj i n
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify appli cant(s) income:
Employer income verification.
Copies of tax returns.
_______ Other( _______________ )
6. Is occupant a C ity of Moorpark resident on the waiting list who was g iven
priority? Yes :___ N o: __ _
Manager Date
119
l INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Gross Net 1099 Public Social Pension Unemploy Military Alimony Family
Applicant Wages Income Income Ass istance Security ment Pay and/or Supp.
1
2
3
4
& Salaries• from 1040 disability or Child (reg ular gift
(YTD as of: (self workers Support from
l employed) compensat person not
ion pay living in
unit)
I (Al TOTAL INCOME [$
'Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or
insurance payments:
ASSET CALCULATION
All income earned on assets in excess of $5,000 mus t be included as household income. Written verification must be included. If written
verification is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property•
Stocks
Other-
$. _________ _
$ _________ _
$. _________ _
[@i TOTAL ASSET INCOME
Sav ings
Bonds
u:
$ __________ _
$ __________ _
•i ncludes rental income or equity if not rented only. Equity is the difference between the market value of the p roperty and the total dollar amount
of any loans secured by the property.
-ooes not include the personal property i .e., furntture or automobiles.
! TOTAL HOUSEHOLD INCOME (A+ B) [$
120
INCOME VERIFICATION
(FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located i n a project financed
under the Mu ltifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages , overtime, bonuses,
comm issions or any other form of compensation rece ived on a regular basis.
EMPLOYER
Annual
Overtime
Bonuses
Commissions
Wages
Current Base Pav
(Gross) Other Income
Avg. Total Hours
Worked Weekly
T otal Current Income _______ _
Year-to-Date Income _______ _
I Pay Period: [) Weekly I [ ) Bi-weekly I I ) Monthly I [ j Other
Do you anticipate an increase in the base pay over the next 12 months? D Yes D No
If so, please indicate the amount of anticipated increase $ _____ per ___ _
start date: ___ _
NOTE TO EMPLOYER: This form is an estimate of anticipated earn ings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses o r raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Emplo ye r
S ignature T itle
Emp loyer's Address Employer's Phone Numb er
APPLICANT
121
hereby grant you perm1ss 1on to disclose my income to
______________ in order that they may determine my income
eligibi lity for rental of an apartment located in their project which has been f inanced
under the Multifamily Revenue Bond Program.
Date
Print Name (Resident)
Please send to :
(Management Co.
or Owner)
Signature (Resident)
122
IN COME VERI FI CATION
(fo r self -em p loyed persons)
I hereby attach copies of my individual fede ral and state income tax returns for the
immediately preceding calenda r year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge .
Signature Date
123
INCOME VERI FICATI ON
(for Social Security recipients)
TO : SOCIAL SECU ~ITY ADMINISTRATION
Ladies and Gentlemen:
I have app lied for a rental unit located in a project financed under the
_____________ Multifamily Housing Program for persons of very
low income: Every income statement of a prospective tenant must be stringently
verified. In connection with my application for a rental unit, I hereby authorize the
Department of Social Services to re lease to
__________________ the specific information requested
be low :
Date : ___________________________ _
Signature: __________________________ _
Socia l Securl ty No.: _________ _
Name (Print): ____________ _
Address(Print), _______________________ _
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
$. ____________________ _
Other Benefit(s): ________ _ Amount:$ __________ _
Medicare Deductions: $ __________ _
Are be nefits expected to change?[ ) Yes [ ] No
If yes , please state date and amount:
Date : __________ o.f change
Amount$ ________ _
124
If recipient is not receiving full benefit amount; please indicate reason and date
recipie nt will start receiving full benefit amount:
Reaso n:
Date of Resumption:
. Amount: _______________ _
Date:
Signature:
Title:
Please send form to:
125
INCOME VERIFICATION
(for Department Socia l Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the
Multifamily Housing Program for persons of very low incom e . Every income statement
of a prospective tenant must be stringently verified . In connection with my application
for a rental unit, I hereby authorize the Department of Social Services to release to
_____________ the specific information requested below:
Date: __________________________ _
Signature: _________________________ _
Caselo ad Number: _______ _;_ __
Name (Print): __________ _
Case Number:
Case Worker: __________ _
1. Number of persons included in budget: __________ _
2. Total monthly budget$ ______________ _
(a) Amount of grant$ _______ _
(b) Date aid last began: ________ _
(c)Other incom e and source: ________________ _
(d) Is other income included in total budget? □ Yes □ No
3 . Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc .): ____ _
4. If recipient is not receiving full grant, please indicate reaso n:
[ ) Overpayment due to client's failure to report other income
I I Computation error
I l Other: ________________________ _
126
Date when full grant will resume : ___________________ _
Date:. _____________ _
Case Worke r's Signature:. ________ _
Telephone: ___________ _
District Office: ____________ _
Your very early response w ill be appreciated .
Please return fo rm to:
127
DECLARATION OF NO I NCOME
As managing agents for -----,--,,---,---------------
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence
and used only for the purpose of establishing el igibility.
CERTIFICATION
Name of Management Company
By:
Name and Title
I, _____________ , do hereby certify that I do NOT receive income
from ANY source. I understand sources of income inc l ude, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Emp loyment General Ass istance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education GrantsM/ork Income from Assets
I understand that should I become gainfully employed or begin receiving income from
any source, I must report the information to the manager immediately.
I certify that the foregoing information is true , complete and correct. Inquiries may be
made to verify statements herein. I c1lso understand that fa lse statements or omiss ions
are grounds for disqualificatio·n and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
128
Support Verification
Source 's Mailing Address:
Phone#: ________ _
Fax#: __________ _
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admiss ions to or liv ing in a commun ity that offers affordable housing . This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your · cooperation in supplying the information
requested below regarding the above referenced individuals. This information will be
used only for determination of eligib ility and/or rent computat ion . You will notice a
release of information is authorized by the applicant/tenant's signature be low.
Your assistance in completing this form accurately and timely is greatly
apprecia ted !
Applicant/Tenant Release Sta te ment
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determ i ne my
eligibi l ity for the Bond Program. Please comp lete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature: _________________ _
Soc ial Security#: ______ _
129
Please complete the following . If the monies are based on a percentage of the payer's
income, please indicate the average amount per period .
Tvne of Benefit Amount Frenuencv
I l Child Support · ( ) weekly ( ) monthly ( )
vearlv
[ I Family Support ( ) weekly ( ) monthly ( )
yearly
I I Alimony ( ) weekly ( ) monthly ( )
yearly
I I Ot~er ( ) weekly ( ) monthly ( )
(Please list -yearly
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ ] No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments: --------------------------
Signature of Source: --------------SSN#: _______ _
Date Completed Form:. ____________ _
130
EXH IB IT NO. 4
TO AF FORDABLE HOUSING AGREEMENT
CERTI FICATE OF CO NTINUING PROGRAM COMPLIANCE
FOR TH E [MONTH/QUARTER] ENDING __ _
The und ersigned , ____________ , as the authorized
representative of __________ (the "Affordable Housing Own er"), has
read and _is thoroughly familiar with the provisions of the Affordable Housing Agreement
by and between Essex Moorpark Owner, L.P. ("Owner") and the City of the C ity of
Moorpark (th e "C ity"), dated as of ________ ., 2017.
As of the date of this Certificate, the following numbers of completed residential
Units in the P roject (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held contin uous ly since the date a Very Low
Income Tenant o r Low Income Tenant vacated such Unit, as indicated:
Occupied by Very Low Income Tenants
Number of Units: ------------
0 cc up i e d b y Low Income Tenants
Number of Units: ___________ _
Occup ied by Moderate lricome Tenants
Number of Units:
Held v acant for occupancy continuously since last occupied by Very Low Income
Tenants and Low Income Tenants:
Vacant Units
N umber: ________ _
Occupied Units
Number: ----------
Very Low Income Tenants and Low Income Tenants who commenced occupancy of
Units during the preceding [month/quarter):
Very Low Income:
Units Nos.: -----------------------
131
Low Income:
Units Nos. _______________________ _
Moderate Income:
Number of Units:
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of
each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the
size and number of bedrooms of each Unit. It a lso indicates which Units are occupied
by Low Income Tenants and Very Low Income Tenants and Modern Income Tenants
and which Units became Low Income Un its and Very Low Income Units and Moderate
Income Tenants durin'g the preceding [month/quarter]. The information contained
thereon is true and accurate.
The undersigned hereby certifies that (1) a revi_ew of the activities of the Owner
and Affordable Housing Owner during such [month/quarter] and of Owner's and the
Affordable Housing Owner's performance under the Affordable Housing Agreement
among Owner, Affordable Housing Owner and the City , has been made under the
supervision of the undersigned; and (2) to the best of the knowledge of the undersigned ,
based on the review described in clause (1) hereof, the neither the Owner nor the
Affordable Housing Owner is in default under any of the terms and provisions of the
above documents [or describe the nature of any default iri detail and set forth the
measures being taken to remedy such default: ______________ _
____________ .) .
132
EXHIB IT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
INITIAL LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(Attached.)
133
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134
EXHIBIT "G"
FORM OF OVERHEAD POWER EASEM ENT
Form to be proposed by Southern Cal ifornia Edison for a 66kV power line, but will be
subject to approval by th e City Manager, and it shall be executed and recorded by
Developer prior to issuance of a grad ing permi t for the Property and prior to conveying
the City Site to the City. The easement must be a reasonable easement over the
northerly 30 feet (or less) of the City Site, permittin g reasonable use of the easement
area by City fo r park ing , ing ress/eg ress and landscaping.
12853--0018\2044326v1 .doc
Exhibit G
Page 1 of 1 135
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136
12853-00 18\2044326v1 .doc
EXH I BIT "H"
STORM WAT ER/FLOOD DETEN TI ON BASI N
(D iagra m attac hed .)
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12853·0018\2044326v1.doc
EXHIBIT "I "
FORM OF WELL SITE GRANT DEED
(AND CERTIFICATE OF ACCEPTANCE)
(Attached .}
139
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
City of Moorpark
799 Moorpark Avenue
Moorpark, California 93012
Attention: City Clerk
APN: 511-0-020-071
(SPACE ABOVE FOR RECORDER'S USE ONLY]
GRANT DEED
(Well Site)
THE UNDERSIGNED GRANTOR DECLARES AS FOLLOWS:
The undersigned declares that this Grant Deed is exempt from Recording Fees
pursuant to California •Government Code Section 27383.
Documentary Transfer Tax is $0 (exempt; conveyance to a pub lic entity).
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged
the ESSEX MOORPARK OWNER, LP., a California limited partnership ("Granter")
hereby ·grants to the CITY OF MOORPARK ("Grantee"), the land and located in the
County of Ventura, State of California, more particularly described on Exhibit A attached
hereto and incorporated herein by reference and all improvements thereon (collectively,
the "Property").
IN WITNESS WHEREOF, Granter has executed this Grant Deed as of the date
set forth below.
Dated: ---~ 2017
GRANTOR:
ESSEX MOORPARK OWNER, LP.,
a California limited partnership
By: Essex Moorpark GP, LP.,
a California limited partnership,
its general partner
By: Essex Management Corporation,
a California corporation,
its general partner
By:---'---------Print Name: _______ _
Title:~---------
140
A notary pub lic or other officer completing th is certificate verifies only the
identity of the individua l who signed the document to wh ich this certificate is
attached, and not the truthfu lness, accuracv, or validitv of the document.
STATE OF CALIFORN IA
COUNTY OF _____ _
On-------,--,-,-----__ , 20 __ before me,, ____________ _,
Notary Public, persol)ally appeared ------,--------------'
who· proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJ URY under the laws of the State of Cal ifornia that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature: _________ _
(affix seal in above space)
141
Exhibit A
to Grant Deed
LEGAL DESCRIPTION
A PORTION OF LOTT OF THE MAP OF A PART OF TRACT L OF RANCHO SIMI, IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, AS
PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF T HE
COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: .
BEGINNIN_G AT A POINT 325.00 FEET WEST OF THE SOUTHEAST CORNER OF
SAID LOTT, THENCE .
1 ST: WEST 10.00 FEET TO POINT; THENCE,
2ND: NORTH 20.00 FE ET TA POINT; THENCE,
3RD: EAST 20.00 FEET TO POINT; THENCE,
4TH: SOUTH 20.00 FEET TO A POINT; THENCE,
5TH: WEST 10.00 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM 50% OF ALL OIL AND MINERAL RIGHTS IN AND UNDER
SAID LAND, AS RESERVED BY WALLY B. HOPFEL T, IN A DEED RECORDED
. MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS. ANYAND ALL
RIGHT TO ENTER IN OR UPON THE SURFACE, OR WITHIN 500 FEET OF THE
PRESENT SURFACE,. MEASURED VERTICALLY, FROM SUCH SURFACE WAS
QUITCLAIMED BY WALLY B. HOFFELT IN A DEED RECORDED FEBRUARY 11,
1958 IN BOOK 1589, PAGE 153 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM AN UNDIVIDED 25% OF AN UNDIVIDED ONE-
HALF INTEREST IN AND TO THE TOTAL OIL AND MINERAL RIGHTS IN AND
UNDER SAID LAND, WITHOUT HOWEVER, THE RIGHT OF SURFACE OR
SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, . AS RESERVED BY RILEY
SPENCER AND DORA E. SPENCER, IN A DEED RECORDED FEBRUARY 4, 1958 IN ·
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
142
CERTIFICATE OF ACCEPTANCE
(California Government Code Section 27281)
This is to certify that the interest in real property conveyed by that certain Grant
Deed dated ---~· 2017, from Essex Moorpark Owner, L.P. to the City of
Moorpark, which is a political corporation, is hereby accepted by the undersigned officer
on behalf of the City of Moorpark pursuant to the authority conferred by action of the ·
City of Moorpark on ___ __, 2017, and the grantee consents to recordation thereof
by its duly authorized officer.
Dated: ---~ 2017
Steven Kueny,
City Manager
ACKNOWLEDGMENT
143
A notary publ ic or other officer
completing th is certificate verifies only
the identity of the individual who
signed the document to which th is
certificate is attached, and not the
truthfulness, accuracy, or validlty of
that document.
State of California
County of _____ _
)
)
On ___________ , before me, ___________ _,
(insert name and title of the officer)
N otary Public, personally appeared _________________ _,
who proved to me on the bas is of satisfactory evidence to be the person(s) whose
name(s) isfare subscribed to the within instrument and acknowledged to me that
hefshefthey executed the same i n hislherftheir authorized capacity(ies), and that by
h isfherftheir signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
W ITN ESS my hand and official seal.
Signature. ____________ _ (Seal)
144
SCHEDULE 1
SCHEDULE OF PERFORMANCE
Design Phase: D esig n has been completed
Bond / Tax Certificate Application: May 19, 2017 (Tax c redit application wou ld follow
shortly th ereafter.)
Subdivision Mapping: Estimated to be September, 2017.
Conveyance to Affordable Housing Owner entity (after delivery of organi zational
documents for Affordable Hous ing Owner to City): October, 20 17
Plan Check/ Building Permits: May 31, 2017
Evidence to City of all debt/equ ity f un ds for all Project costs (with comprehens ive
Project budget): August, 201 7
Close Bond Financi ng: October, 2017
Construct ion: 28 months from start of grad ing, but no later than December 31, 2020.
Lease-Up: approximately 11 months
1285~001812044326v1 .doc 145
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
2022000082017
Recorded in Official Records
Venlura Counly Clerk-Recorder
Mark A. Lunn
08/04/2022
08:51 AM
VEN
CORTEZE
Titles: 1 Pages: 96
Fees: $0.00
EXEMPT FROM Rt:t;UKucr<'S FEES
Pursuant to Government Code 6103
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT BY AND
BETWEEN THE CITY OF MOORPARK AND ESSEX MOORPARK
OWNER, L.P.
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES
HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868. 5
ATTACHMENT 2
146
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF MOORPARK AND
ESSEX MOORPARK OWNER, LP.
This First Amendment to the Development Agreement ("First Amendment") is
made and entered into on August 2, 2022, and is an amendment to that certain
Development Agreement ("Agreement") that was made and entered into on April 17, 2017,
and recorded on April 17, 2017 by Instrument No. 20170417-00050720-0 by and between
the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as "City"), and
ESSEX MOORPARK OWNER, L.P., a California limited liability company ("Developer").
City and Developer are referred to hereinafter individually as "Party" and collectively as
Parties." In consideration of the mutual covenants and agreements contained in this First
Amendment to the Agreement, City and Developer agree as follows:
1. Recitals. This First Amendment is made with respect to the following facts
and for the following purposes, each of which is acknowledged as true and
correct by the Parties:
a. Pursuant to Government Code Section 65864 et seq. and
Moorpark Municipal Code chapter 15.40, City is authorized to enter
into a binding contractual agreement with any person having a legal
or equitable interest in real property within its boundaries for the
development of such property in order to establish certainty in the
development process.
b. Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to
hereinafter as the "Property").
c. Prior to, and in connection with approval of the Agreement, the City
Council reviewed the project to be developed pursuant to the
Development Agreement as required by the California
Environmental Quality Act ("CEQA".) The City Council found that
the Mitigated Negative Declaration ("MND") and Mitigation
Monitoring and Reporting Program ("the MMRP") adopted by
Resolution No 2007-2611 to be applicable to the Agreement and that
no changes or new information within the scope of State CEQA
Guidelines Section 15162 required the preparation of a new or
subsequent environmental document in connection with the
approval of the Development Agreement.
d. Prior to approval of the Agreement, the City had approved General
Plan Amendment No. 2004-05 ("GPA 2004-05"), Zone Change No.
2004-04 ("ZC 2004-04"), and Residential Planned Development
Permit No. 2012-02 ("RPO 2012-02"), including all subsequently
approved modifications and permit adjustments to RPO 2012-02 and
all amendments thereto (collectively "the Project Approvals";
2 147
individually "a Project Approval") to provide for the development of the
Property with a 200-unit residential apartment complex and the
construction of certain off-site improvements in connection therewith
the Project").
e. Thereafter, the Parties entered into the Agreement with respect to the
Property on April 7, 2017, and the Agreement was recorded on April
17, 2017 by Instrument No. 20170417-00050720-0.
f. In order for Developer to achieve a financial plan to construct the
Project, as well as to provide the housing opportunities for residents
and to assist in advancing the City's state-certified Housing Element,
the Parties desire to amend the Agreement to change the Project from
one that provided that fifty (50) units to be affordable to qualifying
income families to one that provides that 200 units, one hundred
percent (100%) of which to be affordable to qualifying income
families and thereby meet the diverse housing needs of the
community, except for two onsite property manager units which shall
be unrestricted.
g. In consideration of the increase in the number of affordable housing
units to be included in the Project, the City has agreed to provide
reductions in certain development impact fees and to provide for a
deferral of some development impact fees in the form of a long-term
loan to the Developer, which changes are reflected in this First
Amendment.
h. On July 27, 2021, the Planning Commission of the City commenced
a duly noticed public hearing on the environmental determination,
and this First Amendment, and at the conclusion of the hearing
recommended approval of the environmental determination and this
First Amendment.
i. On September 1, 2021, the City Council commenced a duly noticed
public hearing on the environmental determination and this First
Amendment, and at the conclusion of the hearing, made an
environmental determination introduced Ordinance No. 490 to
approve this First Amendment. On September 15, 2021, the City
Council adopted Ordinance No. 490 approving this First
Amendment.
2. Conditions to the Effectiveness of this First Amendment. In addition to the
condition in Section 16 of this First Amendment, the effectiveness of this
First Amendment is conditioned upon the occurrence of the following on
or before October 29, 2022: (i) the sale of the Property to the Affordable
Housing Owner (as defined below); (ii) the assignment of the existing
Affordable Housing Agreement to the Affordable Housing Owner and the
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148
execution and recording of the Amended and Restated Affordable Housing
Agreement attached hereto as Exhibit "D" (hereinafter referred to as the
Restated Affordable Housing Agreement"); (iii) the execution and delivery
by Affordable Housing Owner of a promissory note and deed of trust in the
forms attached hereto as Exhibit "E" (hereinafter referred to as the "City
Loan Note" and the "City Loan Deed of Trust"), and the recording of such
City Loan Deed of Trust against the Property (excluding the City Site); and
iv) the conveyance by Affordfable Housing Owner to City of the City Site.
3. Amendment of Section 1.5. Section 1.5 of the Agreement is amended to
read as follows:
All of the units at the Project (except onsite manager's units) shall be
Affordable Units rented to individuals and families whose incomes do not
exceed those specified by the Restated Affordable Housing Agreement-at
rents no greater than those set forth in the Restated Affordable Housing
Agreement (the "Affordable Units") or the Regulatory Agreements (as
defined below) encumberinig the Property (it being understood that the
rents under the Restated Affordable Housing Agreement shall apply to the
units restricted thereunder if they are lower than other Regulatory
Agreements). The Project shall be restricted and encumbered by both the
Restated Affordable Housing Agreement and such Regulatory
Agreements. The City and Developer acknowledge and agree that the
Developer shall apply for, qualify, develop and finance the Project in a
manner that qualifies for tax exempt bond financing and federal low-
income housing tax credits.
4. Amendment of Section 3.2. Section 3.2 of the Agreement is amended to
read as follows:
Restrictions on Transfer. The restrictions contained in this Agreement
placed upon any Transfer to any Transferee are imposed because the
qualifications and identity of Developer are of particular concern to the City,
and it is because of those qualifications and identity that the City has
entered into this Agreement with Developer. Except as permitted herein,
Developer shall not Transfer all or any part of its interest in or rights under
this Agreement, and/ or any part of its interest in or rights to the Site and/or
any of the Improvements constructed thereon, without the prior written
approval of City. City's approval shall be granted or withheld in City' s
discretion, but shall not be unreasonably withheld, delayed or conditioned.
Following a Transfer pursuant to this Agreement with City consent and the
written assumption by the Transferee of the obligations Transferred, the
Transferor shall be released from any further liability thereafter arising with
respect to the obligations Transferred. At any time Developer desires to
effect a Transfer requiring the consent of City under this Agreement,
Developer shall, except as expressly provided below in this Section,
request consent from the City in writing and shall submit to City any
4
149
proposed agreement evidencing the proposed Transfer (collectively, the
Transfer Documents"). City agrees to notify Developer in writing of its
decision with respect to Developer's request for consent to such Transfer,
as promptly as possible, and, in any event, not later than thirty (30) days
after City receives the Developer's written request for consent to the
transfer and the Transfer Documents; provided, that, if City requires
additional time, it may unilaterally extend the approval or disapproval of
such Transfer for up to an additional thirty (30) days by providing written
notice to Developer of such required extension within the initial thirty (30)
day period. Notwithstanding the foregoing, Developer has entered into an
Agreement For Purchase and Sale and Escrow Instructions ("Danco
Purchase Agreement") with Danco Homes LLC ("Danco"), a developer
experienced in the development and operation of low-income multifamily
housing communities. Pursuant to the Danco Purchase Agreement,
Developer shall sell the Property to a limited partnership (the "Affordable
Housing Owner") that has Danco or its affiliate as the administrative
general partner to acquire, own, and operate the Project in accordance
with this Agreement and the Restated Affordable Housing Agreement. The
Affordable Housing Owner intends to finance the costs of development of
the Project in part with tax credit equity and tax-exempt bond financing and
the entire Project will be restricted to low-income use pursuant to
regulatory agreements with the California Tax Credit Allocation Committee
and the issuer of the tax-exempt bonds (the "Regulatory Agreements").
The Developer intends to assign all of its rights, title, interest and
obligations under this Agreement and the Restated Affordable Housing
Agreement and their accompanying exhibits to the Affordable Housing
Owner and the Affordable Housing Owner shall execute and record the
Restated Affordable Housing Agreement concurrently with the acquisition
of the Property from Developer. Upon such assignment, all references to
the Developer hereunder shall be a reference to the Affordable Housing
Owner. The sale of the Property and the related assignments of this
Agreement and the Restated Affordable Housing Agreement to the
Affordable Housing Owner are hereby approved by the City, subject only
to City's approval of the Transfer Documents and receipt of a copy of the
limited partnership agreement and LP-1 of the Affordable Housing Owner.
5. Amendment of Section 3.3. Section 3.3 of the Agreement is amended to
read as follows:
No Other, Separate Conveyance of a Portion of the Property or Project.
Except for the conveyance to the Affordable Housing Owner, Developer
shall not convey any portion of the Property or Project separately from any
other portion but shall only convey any interests concurrently and to the
same purchaser, and only to a purchaser reasonable approved in writing
by City (which will consider the reputation and experience of the purchase
in owning and operating affordable rental units), and as provided in Section
3.2 and 3.4. As a condition to any conveyance by Developer, Developer
5
150
shall execute, acknowledge and record a separate agreement (i.e.,
Assumption Agreement, whereby the Transferee agrees to assume all
obligations of the Agreement.
6. Amendment of Section 3.4. Section 3.4 of the Agreement is amended to
read as follows:
Release Upon Subsequent Transfer. Upon the sale or transfer of
Developer's interest in the Property to the Affordable Housing Owner or
any other single purchaser (or any such purchase or subsequent
purchaser's sale of the entire property), Developer or any such subsequent
purchaser (as applicable), shall be released from its obligations hereunder
with respect to the Property subsequent to the effective date of the sale or
transfer, provided that the seller or transferor (i) was not in breach of this
Agreement at the time of the sale or transfer, and (ii) prior to the sale or
transfer, delivered to City an Assumption Agreement, duly executed by
purchaser or transferee and notarized by a notary public, where the
purchase expressly assumes the obligations under this Agreement with
respect to the Property. Failure to provide an Assumption Agreement
hereunder shall not negate, modify or otherwise affect liability of the
purchaser or transferee pursuant to this Agreement. Nothing contained
herein shall be deemed to grant to City discretion to approve or deny any
such sale or transfer, except as otherwise provided in this Agreement.
7. Amendment of Section 6.3. Section 6.3 of the Agreement is amended to
read as follows:
Development Fee Per Unit. As a condition of the issuance of a building
permit for each residential unit within the boundaries of the Property,
Developer shall pay City a one-time development fee as described herein
the "Development Fee"). The Development Fee may be expended by City
in its sole and unfettered discretion. The amount of the Development Fee
shall be Eight Thousand Six Hundred seventy-five dollars ($8,675.00) per
residential unit. Beginning in 2025, the fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined by
using the information provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The calculation
shall be made using the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
6
151
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Development Fee shall remain at its then current
amount until such time as the next subsequent annual indexing which
results in an increase.
8. Amendment of Section 6.7. Section 6.7 of the Agreement is amended to
read as follows:
Park Fees and Public Art Fee. Prior to the issuance of the building permit
for each residential dwelling unit within the Property, Developer shall pay a
one-time fee in lieu of the dedication of parkland and related improvements
Park Fee"). The amount of the Park Fee shall be Eight Thousand six
hundred seventy-five Dollars ($8,675.00) for each residential dwelling unit
within the Property. If the Park Fee is not paid by January 1, 2025, the Park
Fee shall be adjusted annually commencing January 1, 2025 by the larger
increase of (a) or (b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
all urban consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall be made using
the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Park Fee shall remain at its then current amount until
such time as the next subsequent annual indexing which results in an
increase.
Developer agrees that the above-described payments shall be deemed to
satisfy the parkland dedication requirement set forth at California
Government Code Section 66477 et seq. for the Property. Developer also
understands that because the above-described payments shall be deemed
to satisfy applicable parkland dedication requirements, a public trail through
the Property shall not be required.
Additionally, prior to the issuance of the building permit for the first
residential dwelling unit within the Property, Developer shall pay a one-time
fee for public art, notwithstanding anything to the contrary in the City's
municipal code ("Public Art Fee"). The amount of the Public Art Fee shall
be Four Hundred Twenty Thousand Five Hundred and No/100 Dollars
420,500.00), and shall be payable in eight (8) increments of $52,562.50,
with each increment payable as a condition to the issuance of a building
permit for each of the eight (8) buildings in the Project. If the Public Art Fee
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152
is not paid by January 1, 2025, the Public Art Fee shall be adjusted annually
commencing January 1, 2025 by the larger increase of (a) or (b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor Statistics, for
all urban consumers within the Los Angeles/Long Beach/Anaheim
metropolitan area during the prior year. The calculation shall be made using
the month of October over the prior October.
b) The calculation shall be made to reflect the change in the Caltrans
Highway Bid Price Index for Selected California Construction Items for the
twelve (12) month period available on December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for any
annual indexing, the Public Art Fee shall remain at its then current amount
until such time as the next subsequent annual indexing which results in an
increase.
9. Amendment of Section 6.23. Section 6.23 of the Agreement is amended
to read as follows:
Conveyance to City of City Site; Construction Easement. As used herein,
the term "City Site" shall mean the property described on Exhibit "B".
Provided the City Manager shall have approved of the condition of the City
Site (and City has been inspecting the City Site pursuant to a separate Right
of Entry and Access Agreement and title to the City Site, and an owner's
title policy for the City Site in a form reasonably acceptable to City is
committed to be issued to City at Affordable Housing Owner's cost by a title
company acceptable to City (and with a reasonable liability amount), then
Affordable Housing Owner shall convey the City Site to City by Grant Deed
in its "as-is", "where-is" condition and "with all faults", without any
representations, warranties or guaranties of any nature.
If at any time the City Manager determines that a construction easement for
the City is necessary within the slope on the southerly fifteen (15) feet of the
Property for purposes of improving the City Site and City Manager requests
such an easement in writing, then Developer (or Affordable Housing Owner
as applicable) shall grant a reasonable construction easement to City which
shall not be subordinate to any deeds of trust or other liens (except liens for
property taxes and assessments not yet due) and shall expire five (5) years
after the last Certificate of Occupancy is issued (and the City Manager is
hereby authorized to execute a Certificate of Acceptance for such
easement).
8
153
10. Section 6.26 of the Agreement is hereby deleted in its entirety and
replaced with the following:
Conveyance of Land for Street Widening; Relocation and Undergrounding
of SCE Lines. Substantially concurrently with the conveyance of the
Property to Affordable Housing Owner (i.e., immediately after such
conveyance), and subject to the issuance of a reasonable owner's title
policy to City at the cost of Affordable Housing Owner, Affordable Housing
Owner shall, in order to enable the City to widen High Street, convey to
the City by grant deed the land described as follows:
Such conveyance shall be free of all deeds of trust and other liens (except
for assessments not yet payable) but otherwise the land shall be conveyed
in its "as-is", "where-is" condition and "with all faults", without any
representations, warranties, or guaranties of any nature. Affordable
Housing Owner shall promptly deliver a title report for such land to City for
review.
In connection with the development of the Project, Developer shall make
commercially reasonable best efforts to relocate and underground the
existing overhead Southern California Edison ("Edison") 66kV utility lines
and poles ("Utility Facilities") located on the Property and the City Site at
its sole cost and expense no later than thirty-six (36) months following the
acquisition of the Property by the Affordable Housing Developer. The
Developer and City acknowledge that Edison shall determine the location
and path of the underground Utility Facilities in compliance with Edison
regulations and state law, and in the event that the hard costs (not soft
cost, including without limitation project management fees and costs, and
design, engineering and administrative fees and costs) of undergrounding
the Utility Facilities on the City Property exceeds $500,000, Developer
shall not be required to underground the Utility Facilities on the City Site
and Developer shall instead relocate the Utility Facilities as set forth in the
Utility Facility redesign by BJ Palmer & Associates and depicted on Exhibit
J" attached hereto (the "Revised Plan") and Developer shall pay $400,000
to the City within thirty (30) days after completion of the relocation of the
Utility Facilities on the City Site.
11. Replacement of Section 6.35; Addition of Section 6.40. Section 6.35 of
the Agreement is hereby replaced with the following:
Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on
each anniversary thereof, Affordable Housing Owner shall pay to City a
community services fee of Eight Thousand Dollars ($8,000.00) increased
by two percent (2%) concurrently with annual payments under the City
Note ( as defined in the Development Agreement).
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The following new Section 6.40 is hereby added to the Agreement:
City Financing of Certain Development Fees through a Residual Receipts
Loan. Developer has requested and City has agreed to finance the
payment of certain portions of City development impact fees required in
Sections 6.3 (Development Fee), and 6.7 (Park Fees and Public Art Fee)
to be paid for construction of the Project in the form of a $3,890,500 fifty-
five -year Residual Receipts Loan (the "City Residual Receipts Loan") as
described below. The City Residual Receipts Loan shall be evidenced by
1he City Loan Note and secured by the City Loan Deed of Trust, which
include a term of 55 years from completion and simple interest at 3.00%
per annum, which shall be repayable solely from the City's pro rata share
of 50% of Residual Receipts (which will be shared by other public lenders
making loans required to finance the development). The City Manager
shall have the authority to adjust the residual receipts percentage in the
City Loan Note before it is executed in order to be consistent with the
foregoing. The City Residual Receipts Loan shall be secured by a deed of
trust encumbering the Project that is subordinate only to the liens of the
Project's bond financing and any state agency debt that is required by
regulation to be senior to the City's Residual Receipts Loan, and the City
Manager shall have the authority to execute reasonable subordination
agreements in connection therewith.
The term "Residual Receipts" in a particular calendar year shall mean the
amount by which Gross Revenue exceeds Annual Operating Expenses.
Gross Revenue" means for each calendar year, all revenue, income,
receipts, and other consideration actually received by the borrower from
operation and leasing of the Project. Gross Revenue includes, but is not
limited to: (1) All rents, fees and charges paid by tenants, payments or other
rental subsidy payments received for the dwelling units, deposits forfeited
by tenants, all cancellation fees, price index adjustments and any other
rental adjustments to leases or rental agreements resulting in actual income
to Affordable Housing Owner (Borrower); (2) The proceeds of business
interruption or similar insurance; (3) Any payment received in consideration
for the leasing or other use of any portion of the Project; ( 4) Subject to the
rights of senior lenders, the proceeds of casualty insurance to the extent not
utilized to repair or rebuild the Project (or applied toward the cost of
recovering such proceeds); (5) Subject to the rights of senior lenders,
condemnation awards for a taking of part or all of the project for a temporary
period; and (6) Gross Revenue shall exclude tenants' security deposits,
loan proceeds, capital contributions or other similar advances.
Annual Operating Expenses" with respect to a particular calendar year
means the following costs reasonably and actually incurred for operation
and maintenance of the project to the extent that they are consistent with
an annual independent audit performed by a certified public accountant
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using generally accepted accounting principles: (1) Property taxes and
assessments imposed on the property; (2) Debt service and associated fees
currently due on a non-optional basis (excluding debt service due from
residual receipts or surplus cash of the project) on loans associated with
development of the project and approved by the City in the approved
financing plan; (3) Property management fees and reimbursements, not to
exceed fees and reimbursements which are standard in the industry, and
pursuant to a management contract approved by the City; (4) Premiums for
property damage and liability insurance; (5) Any annual license or certificate
of occupancy fees required for operation of the project; (6) Annual
regulatory compliance monitoring fees payable to the City; (7) Security
services; (8) Advertising and marketing costs; (9) Cash deposited into
reserves for capital replacements of the project in an amount to be approved
by the City as part of the approved financing plan; (10) Partnership
management fees in the amount approved by the City as part of the
approved financing plan; (11) Utility services not paid for directly by tenants,
including without limitation, water, sewer, and trash collection;
12) Maintenance and repair, including pest control, landscaping, grounds
maintenance, painting and decorating, cleaning, common systems repair,
janitorial supplies and services; (13) Social services fees and expenses;
14) Annual audit fees, inspection fees, or monitoring fees required in
relation to any approved financing; (15) Extraordinary operating costs
specifically approved by the City in its reasonable discretion; (16) Payments
of deductibles in connection with casualty insurance claims not normally
paid from reserves, the amount of uninsured losses actually replaced,
repaired or restored, and not normally paid from reserves; (17) Reasonable
accounting fees and legal fees; (18) Payments of Deferred Developer Fee;
and (19) Other ordinary and reasonable operating expenses approved by
the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation,
amortization, depletion or other non-cash expenses or, any amount
expended from a reserve account.
12. Amendment of Section 7.1. Section 7.1 of the Agreement is amended to
read as follows:
Commitment of Resources. At Developer's expense, City shall use good
faith efforts to commit reasonable time and resources of City staff to work
with Developer on the expedited and parallel processing of applications for
Project Approvals and all Subsequent Approvals and Building Permits for
the Project area and if requested in writing by Developer shall use overtime
and independent contractors whenever reasonably possible. Developer
shall assume any risk related to, and shall pay the additional costs incurred
by City for, any expedited and parallel processing. City shall also use good
faith efforts to commit reasonable time and resources of City staff to work
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with the Ventura County Water Protection District for the processing and
permitting of the plans for the undergrounding of the channel.
13. Deletion of Sections 7.9 and 7.17. Sections 7.9 and 7.17 of the Agreement
are hereby deleted in their entirety, and each is hereby replaced with
Intentionally Omitted."
14. Amendment of Section 7.18. Section 7.18 of the Agreement is amended
to read as follows:
Storm Water/Flood Detention Basin. City agrees that Developer may use
the storm water/flood detention basin located on the City Property and
depicted on Exhibit "H" (attached as Exhibit Hof Instrument No. 20170417-
00050720-0) for storm water/retention purposes for the Project, and City
shall execute and deliver a revocable license agreement to Developer to
that affect.
15. New Section 7 .20. Section 7 is amended to add a new Section 7 .20 to read
as follows:
Reporting. Following the commencement of marketing of the Units,
Developer shall provide City with quarterly reports identifying the Units
leased, and such other information as City may reasonably request (and
such reporting shall be in addition to any reporting required in the Restated
Affordable Housing Agreement). If the project is financed through tax
credits, the submittal of copies of the reports required by the Tax Credit
Allocation Committee shall satisfy the reporting requirement hereunder.
City agrees to exercise good faith efforts to assist Developer in connection
with implementation of the Developer's marketing efforts, including
assistance with promotion, marketing and affordable renter qualification
activities, and by incorporating project materials, presentations, mailings,
information and announcements into City's general housing assistance
presentations, mailings and materials; provided, that, unless City agrees
otherwise in its sole discretion, City shall not be required to develop any
separate Project focused materials or programs or incur any out-of-pocket
expenses in connection with such assistance to Developer.
16. New Exhibit for DA Exhibits D and G. Exhibits D and G to the Development
Agreement are hereby deleted and each is hereby replaced by the new
Exhibit "J" attached hereto (at the very end of this Amendment).
17. New Schedule 1. Schedule 1 of the Development Agreement (which is
referred to in Section 5.1 of the Development Agreement) is hereby
deleted and is replaced with the schedule attached hereto as Exhibit "F".
18. Deletion of Exhibit "C". Exhibit "C" (Purchase Agreement) attached to the
Agreement is hereby deleted in its entirety and replaced with "Intentionally
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Omitted."
19. Operative Date of First Amendment. This First Amendment shall become
operative on th date that Ordinance No. that approves this First Agreement
becomes effective pursuant to Government Code Section 36937, subject
to Section 2 of this First Amendment.
20. Authority. By their signatures below, the individuals signing on behalf of
Developer and City warrant that they have the authority to execute this
First Amendment on behalf of Developer and City, respectively.
21. Entire Agreement. The Development Agreement and this First
Amendment, contain the entire agreement between the Parties regarding
the subject matter hereof, and all prior agreements, understandings, oral
written, are hereby merged herein, except that nothing contained herein is
intended to or shall abrogate, extinguish or supersede the Affordable
Housing Agreement and any other City land use entitlements or conditions
imposed thereby that are applicable to the development of the Property.
Effect of Amendment. Except as amended herein, all other provisions of
the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the City of Moorpark and the Developer have executed
this First Amendment to the Development Agreement on the date first above written.
CITY OF MOORPARK
JakeS.Parvi'n
yor
OWNER/DEVELOPER
ESSEX MOORPARK OWNER, L.P.,;
a California limited partnership
By: Essex Moorpark GP, L.P
a California limited partnership, Its general partner
By: Essex Management Corporation
a California corporation
its general partne:.1..----.
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ALL SIGNATURES MUST BE NOTARIZED
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached , and not the
truthfulness , accuracy , or validity of that document.
State of California
County of Ventura
on Ju.\.'-\. Z Ce, z.02:z.. , before me, £-\\..CS:.'-\. µ. \f
ti 0 (\J _ U-. (in se rt na me a nd -titl e of th e
officer) Notary Public, personally appeared _1-\"CID ___ W\ __ c,::. __ (_f____,
q.----------who proved to me on the basis of satisfactory evidence to b he person(s)
whose name(s) is/are subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/her/their authorized capacity(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf
of which the person(s) acted , executed the
instrument. I certify under PENAL TY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and
correct.
WITN
14 ELISA M,
TAYLOR Not ary Public • Californi
a : San Mat eo
County ~ ommlsston II 234336
2 -ir es Jan 25, 20
159
CITY OF MOORPARK
799 Moorpark Avenue, Moorpark, California 93021
Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I moorpark@moorparkca.gov
A notary publ ic or other officer completing this certificate verifies only the identity of
the ind ividua l who signed the document to which this certificate is attached, and not
the truthfu lness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
On this 1st day of August in the year 2022, before me, Ky Spangler, City Clerk of the City
of Moorpark, personally appeared Janice S. Parvin, who proved to me on the basis of
sat isfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me that she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
Witness my hand and Official Seal
City Clerk
JANICE S. PARVIN
Mayor
DR. ANTONIO CAST RO
Councilmember
CHRIS ENEGREN
Councilmember
DANIEL GROFF
Councilmemb er
DA YID POLLOCK
Coun cilmember
160
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Ventura
On , before me, -------------------------(
insert name and title of the officer)
Notary Public, personally appeared __________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Lot 1 of Tract No. 5004 , in the City of Moorpark, County of Ventura, State of
California, as per Map recorded in Book 137, Pages 97 to 102 inclusive of
Miscellaneous Records (Maps) , and amended map of Tract No. 5004, recorded
in Book 146, Pages 1 through 6 inclusive of Miscellaneous Records (Maps), in the
Office of the County Recorder of said county.
APN:513-0-050-205
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EXHIBIT B
DESCRIPTION OF CITY SITE
All of Parcel 1A of in that certain Lot Line Adjustment No. 2005-03 in the City of
Moorpark, County of Ventura, State of California, recorded May 3, 2005 as
Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as
per map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of
said County Recorder.
EXCEPT THEREFROM that portion conveyed to the City of Moorpark by deed
April 30, 2009 as Instrument No. 20090430- 00069389 of Official Records of said
County.
ALSO EXCEPT THEREFROM that portion lying northerly of the following
described line;
BEGINNING at a point in east line of Parcel 1A of said Lot Line Adjustment No.
2005-03, distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2nd Thence, South 27°20'34West 36.75 feet;
3rd Thence, South 89°03'54"West293.78 feet to a point in the west line of said
Parcel 1A.
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EXHIBIT C
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Essex Moorpark Owner, L.P.
c/o Essex Portfolio, L.P.
100 Park Place, Suite 200
San Mateo, CA 94403
Attention: Adam Berry
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EXHIBIT D
FORM OF AMENDED AND RESTATED AFFORDABLE
HOUSING AGREEMENT
UNDER SEPARATE PAGE)
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Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
AFFORDABLE HOUSING LIMITED PARTNERSHIP]
Dated as of , 2021 -----
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AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
THIS AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT (this
Agreement") is to be effective as of _______ , 2021, regardless of the date of
actual execution hereof, and is entered into by and between the CITY OF MOORPARK,
a municipal corporation ("City"), and [AFFORDABLE HOUSING LIMITED
PARTNERSHIP], a California limited partnership ("Owner"), and shall upon the
recordation hereof, supersede and replace that certain Affordable Housing
Agreement between the City and Essex Moorpark Owner, LP. ("Essex") dated April
17, 2017 which was recorded on April 17, 2017 as Instrument Number 20170417-
00050721-0 1/67 in the Official Records of Ventura County, California and was
assigned to Owner pursuant to that certain Assignment and Assumption
Agreement dated _____ , 202_ ("Assignment Agreement").
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records
of the County of Ventura on on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated ______ , 2021 recorded
2021 and was assigned to the Owner pursuant to the Assignment
Agreement (the "Development Agreement") pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager's units) on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPO"), and Zone Change No. 2004-04
ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPO and Mitigation Monitoring Program, as amended, are collectively referred to as the
Project Approvals".
C. The RPO requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
apartment units (~. 198 of the 200 units) in the Project will be restricted by a federal tax
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credit regulatory agreement; such units being described on Exhibit 2 attached hereto by
income level and bedroom count. Two units will be manager's units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings.
Affordable Rent" shall mean the rent described in Section 2.9, subject to Section
2.10.
Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
Agreement" shall mean this Amended and Restated Affordable Housing
Agreement.
City" shall mean the City of Moorpark, California, a municipal corporation.
County" shall mean Ventura County.
County Median Income" shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by HCD (California Health and
Safety Code 50093(c) and 25 California Code of Regulations Section 6932), or if HCD
discontinues such publication, then such reasonable replacement publication as may be
selected by City in good faith.
Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
Development Agreement" shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on on April 17, 2017, which has been amended by a First Amendment
to Development Agreement dated ______ , 2021 and recorded as Instrument
No. ______ in the Official Records of the County of Ventura.
Extremely Low Income" shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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Extremely Low Income Household" or "Extremely Low Income Tenant" means
individuals or households qualified on the basis of a "certification of tenant eligibility" as
certified by such individual or household, who have a gross income which does not
exceed Extremely Low Income, adjusted for household size.
Extremely Low Income Units" means Units rented to Extremely Low Income
Households.
HCD" shall mean the Department of Housing and Community Development
HCD) of the State of California.
Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit in the Project and "Stabilization" (as defined below).
Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit.
Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
Low Income Units" means Units rented to Low Income Households.
Owner" shall mean Essex Moorpark Owner, L.P., and any permitted assignee of
its rights, powers and responsibilities, or any successor in interest to any portion of or
interest in the Project or Property.
Project" is the residential development described in RPO 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functionally related and subordinate
facilities, and all improvements required by the Project Approvals.
Project Approvals" is defined in Recital B above.
Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1 .
Stabilization" shall mean the time at which the Project achieves ninety percent
90%) occupancy for ninety (90) consecutive days.
Term" shall mean from the date of recordation of this Agreement until the later of:
i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
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Units" shall mean residential dwelling units.
Utility Allowance" shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, "Affordable
Housing Financing") to finance the Project, and, although not
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enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager's units) for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the "Compliance Period and
Extend Use Period") and applicable to the tax exempt bonds (the
Qualified Project Period").
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to be
recorded in the Office of the County Recorder of Ventura County, California concurrently
with the closing of the Project Financing, and Owner shall ensure that this Agreement
shall be senior in priority to any lien, encumbrance or other matter of record except for
property taxes and assessments not yet due and existing easements necessary for the
operation of the Project or as otherwise expressly approved in writing by City. The Owner
shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Affordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or solarready,
water heater, built-in oven, microwave, stove, bathroom fan, , doors and door hardware,
and floor and window coverings.
Owner agrees not to convert the Project or any part thereof to any type of
common interest development, for-sale condominiums, community apartments, planned
development, stock cooperative, hotel, motel, or any type of congregate care or assisted
living facility. Owner agrees that they shall not knowingly permit any of the Units in the
Project to be used on a transient basis and shall not rent any Unit for a period of less than
thirty (30) days. At no time shall any of the Affordable Units be rented to an employee,
agent, officer, contractor of any owner of any portion of the Property or Project or of any
company affiliated with any such owner, or to any such affiliated company.
2.4 INTENTIONALLY OMITTED
2.5 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner and approved by City which approval shall not be unreasonably
withheld, conditioned, or delayed ("Rules"). Owner shall submit such Rules to City during
the Initial Rent-Up for the City's approval, which will not be withheld, conditioned or
delayed. Annually, Owner shall submit any amendments, modifications or changes to
such Rules to the City at least forty-five (45) days prior to their proposed effective date
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and all of such amendments, modifications and changes shall be subject to the City's
prior written consent, which will not be withheld, conditioned or delayed. If City does not
consent, City shall specify the reasons in writing so that Owner can revise the
amendment(s), modification(s) or change(s) and re-submit them for City approval, which
will not be withheld, conditioned or delayed. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as amended,
remain in effect (with a copy of the Rules and any amendments). If applicable, this
Agreement shall be consistent with any Extended Use Agreement entered into between
Owner and the California Tax Credit Allocation Committee.
2.6 Single Owner. All of the Affordable Units shall be and remain owned by the
Owner for the term of this Agreement. No Affordable Unit may be sold separately.
2.7 Affordable Units Generally.
2.7.1 Accessible Compliant Units. The Project shall comply with the
current California Building Code with respect to the number of Affordable Units that must
be compliant with laws regarding disabled persons (including, without limitation, the
Americans with Disabilities Act) and shall be reserved for and occupied by persons
eligible for such accommodations. Owner shall maintain a waiting list for the affordable
accessible-compliant units, shall promptly deliver a copy thereof to City and shall
thereafter deliver a copy of the revised list to City whenever the list changes. Should
there be a qualified Extremely Low or Very Low Income or Low Income prospective tenant
desiring to rent such a unit but all such units are rented, Owner shall add such prospective
tenant to the waiting list for the affordable accessible-compliant units. At the earliest
possible time an Extremely Low or Very Low or Low Income non-accessible compliant
affordable unit becomes available, the non-accessible Extremely Low or Very Low or Low
Income tenant who occupies the affordable accessible compliant unit shall be relocated
to another affordable unit in order to allow the qualified disabled household to occupy the
accessible compliant unit. Owner shall include a provision in the non-accessible
compliant affordable lease for any accessible-compliant affordable unit that the non-
accessible Extremely Low or Very Low or Low Income tenant agrees to be relocated, at
Owner's cost, as soon as a non-accessible compliant unit becomes available. While any
of the affordable accessible-compliant units are not being leased to disabled persons (due
to unavailability of such persons to lease), the applicable Affordable Unit shall be leased
in accordance with this Agreement.
At all times, Owner shall keep City informed in writing of the income level applicable
to each accessible compliant unit.
The accessible compliant units shall be consistent with accessibility design criteria
established by the State of California, and Owner shall promptly make any changes to
such units required by new laws or changes in laws. Reasonable accommodation shall
be made, as may be requested by specific Extremely Low or Very Low or Low Income
disabled tenants in such units, to provide features such as smoke alarms with flashing
lights, for instance, if requested by hearing impaired Extremely Low or Very Low or Low
Income tenants in an accessible compliant unit.
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2.7.2 [Intentionally Deleted].
2.7.3 Preference Policies. To the extent permitted by applicable state and
federal law, priority shall be granted to eligible City of Moorpark residents. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next eligible
households to fill the vacancies allowing for priority for City of Moorpark residents to the
extent permitted by applicable state and federal law. Details of this process shall be
submitted in writing to the City for review and approval prior to the issuance of the first
building permit for this project. Additionally, Owner shall submit to City an annual report,
no later than January 30 of each calendar year for the pervious calendar year, describing
the vacancies filled from households on the list, total vacancies filled and the number of
households on the list.
2.7.4 Occupancy Reporting. As specified in Section 2.12, Owner will
advise City on a quarterly basis in writing of the number of Affordable Units in the entire
Project occupied by Extremely Low or Very Low or Low Income Tenants by delivery of a
certificate in the form specified by the City, which is attached hereto as Exhibit No. 3,
which shall include a statement as to whether or not the tenant was a City of Moorpark
resident who on the waiting list and was given priority. Any reporting schedule less
frequent than quarterly must be expressly approved in writing by the City Manager.
2.7.5 Unit Classification. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, an Affordable Unit occupied by an Extremely
Low or Very Low or Low Income Tenant shall be deemed, upon termination of occupancy
by such tenant (whether voluntarily or involuntarily), to be continuously occupied by an
Extremely Low or Very Low or Low Income Tenant, as applicable, until re-occupied other
than for a temporary period (not to exceed 60 days), at which time the classification of the
Unit shall be redetermined (provided that upon such reclassification, Owner must remain
in compliance with this Agreement). Owner shall use commercially reasonable efforts to
prevent such temporary periods from exceeding sixty (60) days. Owner will also obtain
and maintain on file such Certifications of Tenant Eligibility in the form of Exhibit No. 3
attached hereto, for each Extremely Low and Very Low and Low Income Tenant. Owner
shall make a good faith effort to verify that the income declared by an applicant in an
income certification is accurate by reviewing any one or more of the following documents,
which shall be provided by the applicant:
a) A pay stub for the most recent pay period;
b) An income tax return for the most recent tax year;
c) An income verification form from the applicant's current employer;
d) An income verification form from the Social Security Administration
and/or the California Department of Social Services if the applicant receives assistance
from either of those agencies; or
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e) If the applicant is unemployed and has no tax return, another form of
independent verification is needed.
In addition to the above-referenced income certification and subject to fair housing
laws and the rules and regulations of the California Tax Credit Allocation Committee,
eligible Extremely Low and Very Low and Low Income applicants for the ADA compliant
units shall submit a letter from a physician or other document acceptable to the City and
Owner which confirms the accessibility needs of the applicant.
2.7.6 Lease Provisions. Subject to the rules and regulations of the
California Tax Credit Allocation Committee, the Owner shall include provisions in all
signed leases or rental agreements for all Affordable Units which authorize the Owner to
immediately terminate the tenancy of any tenant occupying an Affordable Unit where one
or more of such tenants have misrepresented any fact material to the qualification of such
an individual or household as an Extremely Low or Very Low or Low Income Tenant
and/or for qualification for occupancy of an Affordable Unit, and Owner shall reasonably
enforce such termination rights (i.e., Owner shall exercise them and not waive them).
Each lease or rental agreement for an Affordable Unit shall also provide that the tenants
of such Affordable Unit shall be subject to annual certification or recertification of income,
as required by the City, and shall be subject to rental increases in accordance with Section
2.11 of this Agreement.
2.7.7 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.7.8 Administration by City: Administrative Fee. City shall appoint a staff
person to oversee the implementation of this Agreement, and shall notify Owner in writing
of the name and phone number of such staff person and any replacements. On or before
the first day of June of each year during the Term of this Agreement, commencing after
the first residential occupancy of the Project, Owner shall pay to the City for the
administration of this Agreement (and be jointly and severally liable for) an annual fee
equal to twenty-five thousand dollars ($25,000.00), subject to adjustment annually by the
larger of (a) or (b) below:
a) The percentage increase in the Consumer Price Index during
the prior year, which shall be determined by using the Consumer Price Index by the U.S.
Department of Labor, Bureau of Labor Statistics, for all urban consumers, all items, for
the Los Angeles/Riverside/Orange County metropolitan area (i.e., the Los Angeles-Long
Beach-Anaheim index). The calculation shall be made by copying such CPI for the month
of October to the CPI for the previous October.
b) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City's Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4 ).
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In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to achieve
substantially the same result.
2.7.9 Lease Provisions. The provIsIons relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld, conditioned, or delayed.
If the lease or rental agreement provisions specified in this Section are not approved or
disapproved within thirty (30) days after submittal to City, they shall be deemed approved.
2.8 Rent-Up Periods and Occupancy Procedures.
2.8.1 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of marketing,
Owner shall prepare and submit to the City for reasonable approval a marketing and
outreach program which shall contain, among other things, the following: how a potential
tenant would apply to rent a Unit in the Project, including where to apply, applicable
income limits and rent levels; support documentation needed such as pay stubs, tax
returns, or confirmation of disability, if applicable, a description of procedures Owner will
follow to publicize vacancies in the Project, including notice in newspapers of general
circulation, including at least one Spanish-language newspaper and mailing notices of
vacancies to or contacting by telephone potential tenants on the waiting list maintained
by Owner. Notices shall also be given to organizations in Ventura County which provide
referrals or other services to persons with disabilities.
2.8.2 In the event that any Affordable Unit is rendered unfit for occupancy
including by damage or destruction), then until the Affordable Unit is
repaired/reconstructed (so that it is available for leasing in compliance with this
Agreement), Owner shall pay the City a single fee of $10 (which shall increase by $2
every five (5) years) per day until the Affordable Unit is placed back in service except that
such fee shall not be payable for so long as Owner is diligently attempting to repair or re-
build the Affordable Unit in question, as shown by reasonable evidence provided to City.
2.9 Affordable Rent.
2.9.1 Monthly rent charged to Extremely Low Income households shall be
no greater than thirty percent (30%) of thirty percent (30%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance, all in
accordance with California Health and Safety Code Section 50053(b). "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance, all in
accordance with California Health and Safety Code Section 50053(b). "Family size
appropriate to the Unit", as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
2.9.3 Monthly rent charged to Low Income households shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowancem all in accordance with
California Health and Safety Code Section 50053(b). "Family size appropriate to the Unit",
as shown on Exhibit No. 2 is defined in Section 50052.S(h) of the California Health and
Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a 2 bedroom unit and 4
persons for a 3 bedroom unit.
2.9.4 Utility Allowances will be adjusted annually using the most current
Allowances for Tenant Furnished Utilities and Other Services" (form HUD-52667) based
on Apartment/Walk Up unit type as posted and updated annually by the Area Housing
Authority of the County of Ventura based on the following appliances/utilities to be
provided to the units:
Natural Gas -Heating, cooking, water heating
Water, Sewer, Trash, Other Electric allowance (for lights and other electric
uses)
2.10 Alternative Affordable Rent Calculations. If the requirements or practices
of the California Tax Credit Allocation Committee (CTCAC), the California Debt Limit
Allocation Committee (CDLAC), any lender as Bond owner, or other entity or entities
similarly associated with anticipated financing of the construction of this project, or future
prudent refinancing of this project, utilizes definitions, sources of information, etc., other
than those which have been herein defined and utilized in calculating Affordable Rent,
then the procedure or input which produces the lowest affordable rent, will prevail as to
the applicable Affordable Unit restricted by this Agreement.
2.11 Income Recertification; Rent Increases.
2.11.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant's initial
rental date. This recertification shall be submitted in writing to the City within thirty (30)
days of such action.
2.11.2 Rents for the Affordable Units may be increased only once per
calendar year, concurrently with or subsequent to any increase in the County Median
Income when and as determined by HCD. The rents charged for the Affordable Units
following such an increase, or upon a vacancy and new occupancy by an Extremely Low
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or Very Low or Low Income Tenant, as the case may be, shall not exceed the allowable
rent calculated in compliance with Sections 2.9, 2.12.1, 2.12.2, and 2.12.3 below.
2.12 Increased Income of Occupying Households. Only after the last to expire
of the Compliance Period and Extended Use Period or the Qualified Project Period with
respect to the Extremely Low Income Units and Very Low Income Units, the following
shall apply:
2.12.1 If, upon income recertification, the Owner determines that the
household income of an Extremely Low Income Tenant has increased above the
maximum allowable household income level of an Extremely Low Income Tenant, but
remains equal to or below that of a Very Low Income household, then, except as provided
below in this Section 2.12, the Owner shall not be required to evict the Tenant and the
monthly rent charged to such Tenant shall be not greater than one-twelfth (1/12) of thirty
percent (30%) of fifty percent (50%) of the County Median Income for the size household
appropriate to the unit (less the utility allowance), upon sixty (60) days written notice to
the occupants thereof. In that event, the next available unit that was previously a Very
Low Income Unit must be rented to (or held vacant and available for immediate occupancy
by) an Extremely Low Income household.
2.12.2 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income level of a Very Low Income Tenant, but remains equal to or
below that of a Low Income household, then, except as provided below in this Section
2.12, the Owner shall not be required to evict the Tenant and the monthly rent charged to
such Tenant shall be not greater than one-twelfth ( 1 /12) of thirty percent (30%) of sixty
percent (60%) of the County Median Income for the size household appropriate to the
unit (less the utility allowance), upon sixty (60) days written notice to the occupants
thereof. In that event, the next available unit that was previously a Low Income Unit must
be rented to (or held vacant and available for immediate occupancy by) a Very Low
Income household.
Notwithstanding the foregoing, any such Tenant shall have the right to
request a recertification of income (not later than sixty (60) days prior to the date they are
supposed to vacate). If the recertification shows that income is not greater than the
maximum allowable household income level due to a documented voluntary reduction of
income, then the notice to vacate shall be withdrawn.
Until the last to end of the Compliance Period and Extended Use Period or the
Qualified Project Period, Owner shall comply with laws and regulations of CTCAC,
CDLAC and any separate/additional recorded restrictions or "Regulatory Agreement"
required by the Affordable Housing Financing and such requirements with respect to over-
income tenants shall prevail.
Owner shall promptly deliver to City copies of all Affordable Housing Financing
regulatory agreements or similar agreements restricting Units in the Project, and shall
notify City and all affected tenants in writing of the expiration of the period at least one (1)
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calendar year (but not more than fourteen (14) months) prior to expiration of the
Compliance Period and Extended Use Period or Qualified Project Period, whichever
expires later, of any effect on the affordability level of their Affordable Units.
Additionally, Owner shall notify City in writing of any re-syndication or extension of
tax credit financing and any defeasance or refinancing of bond financing as soon as they
become reasonably likely.
2.13 Specific Enforcement of Affordability Restrictions.
2.13.1 Owner hereby agrees that specific enforcement of Owner's
agreements to comply with the allowable rent and occupancy restrictions of this
Agreement is one of the reasons for the City's issuing the Project Approvals and entering
into the Amendment to Development Agreement.
2.13.2 Owner further agrees that, in the event of any breach of such
requirements, potential monetary damages to City, as well as prospective Extremely Low
and Very Low Income Tenants, would be difficult, if not impossible, to evaluate and
quantify.
2.13.3 Therefore, in addition to any other relief or damages to which the City
may be entitled as a consequence of the breach hereof, Owner agrees to the imposition
of the remedy of specific performance against it in the case of any event of default by
Owner in complying with the allowable rent, occupancy restrictions or any other provision
of this Agreement. Nothing herein shall impair City's rights to liquidated damages under
Section 6.4 below.
2.14 [INTENTIONALLY OMITTED]
2.15 Reporting Requirements.
2.15.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner shall prepare and submit to the City, on a
quarterly basis, written reports, setting forth the rental activity for the previous month, and
the current total number of Affordable Units occupied by tenants.
2.15.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.15.1, Owner shall prepare and submit
to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a
Certificate of Continuing Program Compliance in a form substantially similar to Exhibit
No. 4 attached hereto, stating: (a) the number and percentage of Affordable Units in the
Project which were occupied by Extremely Low, Very Low, and Low Income Tenants, or
held vacant and available for occupancy by such Tenants during said period; and (b) that
to the knowledge of Owner, no default has occurred under the provisions of this
Agreement; and (c) such other information as may be requested in writing by the City
Manager.
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2.15.3 Owner shall prepare and submit to the City, on an annual basis, a
report in form and substance reasonably satisfactory to the City, not later than March 31st
of each year for the preceding calendar year, summarizing the vacancy rate of the
Affordable Units in the Project on a month-to-month basis for such calendar year.
2.15.4 Owner shall also deliver to City from time to time any other
information about the Affordable Units and the rental thereof as may be reasonably
requested in writing by City within ten (10) days after any such written request.
ARTICLE 3 OPERATIONS
3.1 [INTENTIONALLY OMITTED]
3.2 Management Agent.
3.2.1 The Project shall at all times be managed by the Owner or a single
third-party management agent with demonstrated ability to operate, and experience in
operating, residential housing including restricted affordable housing, in a manner that
will provide decent, safe and sanitary residential facilities to occupants thereof, including
experience in complying with reporting requirements and occupancy restrictions similar
to those imposed upon the Project by the terms of this Agreement. (There may only be
one manager for the entire Project at any one time.)
3.2.2 The Owner, directly or through an affiliate, may be the "manager" of
the Project. The Owner may retain on-site personnel and other consultants and service
providers to assist Owner to operate the Project effectively and in compliance with the
provisions of this Agreement and state and federal law.
3.2.3 In the event that Owner seeks to appoint a replacement management
entity to manage the Project, they shall advise the City of the identity of any such qualified
management agent not later than thirty (30) days prior to the effective date of such
appointment. The Owner shall also submit such additional information about the
background, experience and financial condition of any proposed management agent as
is reasonably requested by the City.
3.2.4 Upon the City's written request, the Owner shall cooperate with the
City in an annual review of the management practices and status of Project. The purpose
of each annual review will be to enable the City to determine if the Project is being
operated and managed in accordance with the requirements and standards of this
Agreement.
3.3 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation among
the City, the Owner and the management agent:
3.3.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent, or a resident manager who will report to the
management agent.
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3.3.2 There will be regular meetings as necessary between the Owner and
the management agent for the purpose of reviewing policies, procedures, resident
relations and budget control.
3.3.3 Owner shall notify the City in writing of the direct phone number and
email address of the management agent (so that City may contact the management agent
directly), and shall cause the management agent or its personnel to be available on a
twenty-four hour a day basis to respond to City inquiries.
3.4 Staffing Arrangements. Owner shall provide for adequate on-site staffing
of management personnel to manage the Project in a prudent and businesslike manner.
In addition, Owner shall provide such security services as may be necessary or
appropriate for the Project. All hiring of on-site personnel shall conform to applicable equal
opportunity guidelines, without regard to race, religion, color, national origin or sex. All
hiring materials will indicate that the Project is an "Equal Opportunity Employer."
Employment grievances, terminations and promotions will be conducted according to
personnel policies and procedures which conform with equal opportunity laws. All
personnel employed at the Project will receive training specific to Owner's policies and
procedures.
3.5 City Ability to Modify. If the Project is not timely completed in accordance
with the Schedule of Performance in the Development Agreement, the City may modify
the development standards and to change the General Plan designation and zoning of
the Property, and Owner hereby waives any rights they might otherwise have to seek
judicial review of such City actions to change the development standards, General Plan
designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
3.6 Annual Community Services Fee. Upon the issuance of a Zoning
Clearance by the City for occupancy of the first unit of the Project, and on each
anniversary thereof, Owner shall pay to City a single community services fee of Eight
Thousand Dollars ($8,000.00) increased by two percent (2%) concurrently with annual
payments under the City Note (as defined in the Development Agreement) ..
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the
Project and the Property in good condition and repair and in a prudent and businesslike
manner. If any portion of the Project is damaged, restoration of the damaged
improvements shall be made by Owner to a condition as good as existed prior to the
damage. Owner shall complete promptly and in a good and workmanlike manner any
improvements which may now or hereafter be constructed as part of the Project and pay
when due all claims for labor performed and material furnished therefor. Owner shall
comply with all laws, ordinances, rules, regulations, covenants, conditions, restrictions,
and orders of any governmental authority now or hereafter affecting the conduct or
operation of the Project and of their businesses on the Project or any part thereof or
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requiring any alteration or improvement to be made thereon. Owner shall maintain
grounds, sidewalks, roads, parking, and landscaped areas in the Project (and on any
adjacent areas owned by either of them) in good and neat order and repair. Owner hereby
agrees that City may conduct from time to time through representatives of its own choice
who are properly identified as agents of the City, upon reasonable written notice and
subject to reasonable security and safety procedures and rights of tenants in possession,
on-site inspections and observation of such records of Owner relating to the Project and
the Property as City reasonably deems to be necessary or appropriate in order to monitor
Owner's compliance with the provisions of this Agreement. The Owner shall conduct an
ongoing maintenance program, which shall include the following:
a. Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
b. Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
c. Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
d. Preventative regular inspections of common areas and equipment as
well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and cleaned
regularly and kept free of trash and other debris. Garbage removal will be provided
through arrangements with a contractor, consistent with applicable City ordinances. The
trash areas will be swept regularly and scrubbed with disinfectant when necessary.
Extermination services will be contracted with to provide pest control consistent with high
quality apartment management practices.
e. Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
f. Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical inspection,
or as occupancy changes, or as the Owner or the management agent may otherwise
deem necessary.
g. Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the work
has been completed.
4.2 Disclaimer. Nothing in this Agreement shall make City responsible for
making or completing capital repairs or replacements to the Project or the Property or
require City to expend funds to make or complete the same.
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ARTICLE 5 TERM
5.1 Term of Agreement. This Agreement shall remain in full force and effect for
the Term.
ARTICLE 6 DEFAULT AND REMEDIES
6.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
6.1.1 Failure by the Owner to duly perform, comply with and observe the
conditions of Project approval, conditions, terms, or covenants of the Development
Agreement or this Agreement, if such failure remains uncured thirty (30) days after written
notice of such failure from the City in the manner provided herein or, with respect to a
default that cannot be cured within thirty (30) days, if the Owner or Affordable Housing
Owner fails to commence such cure within such thirty (30) day period or thereafter fails
to diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within ninety
90) days after the first notice of default is given or such longer period as may be agreed
upon by both parties in writing. If a different period or notice requirement is specified
under any other section of this Agreement, then the specific provision shall control.
6.1.2 Failure by Owner to cure any default under Section 2.15 within fifteen
15) business days after written notice of such default by City.
6.1 .3 Any representation or warranty contained in this Agreement or in any
application, financial statement, certificate, or report submitted to the City by Owner
proves to have been incorrect in any material respect when made, if such failure remains
uncured thirty (30) days after written notice of such failure from City to Owner in the
manner provided herein or, with respect to a default that cannot be cured within thirty (30)
days, if the Owner fails to commence such cure within such thirty (30) day period or
thereafter fail to diligently and continuously proceed with such cure to completion.
6.1.4 A court having jurisdiction shall have made or rendered a decree or
order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of Owner or seeking any arrangement on behalf of the
Owner under the bankruptcy law or any other applicable debtor's relief law or statute of
the United States or of any state or other jurisdiction which is not dismissed within sixty
60) days after filing; (c) appointing a receiver, trustee, liquidator, or assignee for the
benefit of creditors of the Owner in bankruptcy or insolvency or for any of its properties
which (or who) is not discharged within sixty (60) days after its appointment; or (d)
directing the winding up or liquidation of the Owner, providing, however, that any such
decree or order described in any of the foregoing subsections shall have continued
unstayed or undischarged for a period of ninety (90) days.
6.1.5 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
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of its property, unless the property so assigned, sequestered, attached, or executed upon
shall have been returned or released within ninety (90) days after such event (unless a
lesser time period is permitted for cure hereunder) or prior to sale pursuant to such
sequestration, attachment, or execution. If the Owner is diligently working to obtain a
return or release of the property and the City's interest hereunder is not imminently
threatened in the City's reasonable business judgment, then the City shall not declare a
default under this subsection.
6.1.6 The Owner shall have voluntarily suspended its business for a period
of thirty (30) consecutive days or dissolved and a subsequent owner has not assumed
the obligations of Owner in accordance with this Agreement.
6.1.7 Should any default be declared by any lender under any loan
document or deed of trust relating to any loan made in connection with the Project or
Property, which loan is secured by a deed of trust or other instrument of record, and is
not cured within the applicable cure period, if any, granted in the applicable loan
documents.
6.2 Liens.
6.2.1 This Agreement shall be senior in priority to any lien or encumbrance
on the Property (other than the Development Agreement) and all liens and encumbrances
shall be subordinate and subject to this Agreement, regardless of actual date of
recordation. The City shall consider in good faith, reasonable modifications of this
Agreement typically required by secured lenders and commonly known as "mortgagee
protection" provisions; however, in no event shall any such modification shorten the term
of this Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests in the
Project or the Property, or any part thereof or interest. therein (except the lien of any
mortgage, deed of trust or other recorded instrument securing any construction or
permanent financing for the Project, which shall, in any event, be junior and subordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty-five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall
deposit with City a bond or other security reasonably satisfactory to City in such amounts
as City shall reasonably require, but no more than the amount required to release the lien
under California law and provided further that Owner shall thereafter diligently proceed to
cause such lien, encumbrance or charge to be removed and discharged, and shall, in any
event, cause such lien, encumbrance or charge to be removed or discharged not later
than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
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the preceding sentence, if applicable, then, in addition to any other right or remedy of
City, City may, but shall not be obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or the
amount or otherwise giving security for such claim, in such manner as is or may be
prescribed by law. Owner shall, immediately upon written demand thereof by City, pay
to City an amount equal to all costs and expenses incurred by City in connection with the
exercise by City of the foregoing right to discharge any such lien, encumbrance or charge.
To the extent not paid, all costs and expenses paid by the City shall be a lien on the
Property pursuant to Civil Code Section 2881.
6.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other costs
of enforcing the obligations secured hereby including without limitation, recording fees,
receiver's fees and expenses, and all other expenses of whatever kind or nature, incurred
by the prevailing party in connection with the enforcement of this Agreement, whether or
not such enforcement includes the filing of a lawsuit.
6.4 Enforcement of this Agreement: Remedies. Upon the occurrence of any
Event of Default by Owner, City shall be entitled to enforce performance of any obligation
of Owner arising under this Agreement and to exercise all rights and powers under this
Agreement or any law now or hereafter in force. Additionally, without limiting any of City's
other rights or remedies, upon any leasing of a particular Affordable Unit in violation of
this Agreement, then Owner shall pay the City a single fee of $10 (which shall increase
by $2 every five (5) years) per day until the violation has been cured (it being understood
that if the Affordable Unit is unavailable due to material damage or destruction, Section
2.8.6 above shall govern). Additionally, City shall be entitled to recover from Owner, in
addition to enforcement costs and any other damages to which City may be entitled, all
rent charged by Owner in excess of the rental amounts permitted under this Agreement,
with interest thereon from the date paid to Owner until the date paid by Owner to City at
the lesser of eight percent (8%) per annum or the maximum rate permitted by law. Owner
stipulates, acknowledges and agrees that the amounts described herein are reasonable
estimates of the minimum damages incurred by the City and public as a result of
violation(s), and that actual damage would be impractical or impossible to determine with
accuracy. No remedy herein conferred upon or reserved to City is intended to be
exclusive of any other remedy herein or by law provided or permitted, but each shall be
cumulative and shall be in addition to every other remedy given hereunder or now or
hereafter existing at law or in equity or by statute. Every power or remedy given by this
Agreement to the City may be exercised, concurrently or independently, from time to time
and as often as may be deemed expedient by the City, and the City may pursue
inconsistent remedies. The City shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the Owner to perform its obligations and
covenants under this Agreement or to enjoin acts or things which may be unlawful or in
violation of the provisions hereof.
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ARTICLE 7 GENERAL PROVISIONS
7.1 Notices. All notices, certificates or other communications required or
permitted hereunder shall be in writing and shall be delivered by certified mail, postage
prepaid, or by reputable overnight messenger service, addressed as follows:
If to the City:
If to the Owner:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
Essex Moorpark Owner, L.P.
1100 Park Place, Suite 200
San Mateo, CA 94403
Attention: Adam Berry
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by overnight
messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7 .3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7 .5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to City in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
other than pertaining to this Agreement), shall be rendered against Owner, or their assets
other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any of their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7 .8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the other party. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and such wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7 .9 Enforcement; Waiver. The City may take whatever action at law or in equity
as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7 .10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor-in-interest of
such party who has acquired any portion of or interest in the Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7 .13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property "run with the land".
7.14 Transfers. Owner shall provide the City with at least thirty (30) days' prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7 .15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7 .16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7 .17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7 .18 Controlling Law: Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Court for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its address for notices
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pursuant to this Agreement. Nothing contained herein shall affect the right of the City to
serve process in any other manner permitted by law.
7 .19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
a) "Hazardous Materials" shall mean:
1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601 (14)) or Section 25281 (d) or 25316 of the
California Health and Safety Code at such time;
2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117 .5 or 25501 U) of the California
Health and Safety Code at such time;
3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
b) "Hazardous Materials Laws" means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner hereby agrees that:
a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as "Hazardous
Materials Claims"); (3) the presence of any Hazardous Materials in, on or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "borderzone
property" under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of (1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occupying or
present on the Project or the Property, in connection with the handling, treatment,
removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Property. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Materials Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7.19.4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Property
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor's liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then-current limit.
b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it continues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not less than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one-half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best's Insurance Guide, or any successor thereto
or if there be none, an organization having a national reputation) as having a "Best's
Rating" of "A" and a "Financial Size Category" of at least "VII" or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies shall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7.1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance.
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7 .24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7 .25 Assessment Districts: Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the "Developer"
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due to a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements that
are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner agrees that densities vested
and incentives and concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to which Developer is
entitled under the Moorpark Municipal Code, Government Code Sections 65915 through
65917 .5 or both Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and include all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second "back-up" district) or one
Assessment District containing two zones (one zone to be fully funded and the other to
be a back up zone), as determined by the City at the City's discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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194
that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPO 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any such fees under
protest pursuant to California Government Code Section 66020 and statutes amendatory
or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parking spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner acknowledges the City's ability to modify the
development standards and to change the General Plan designation and zoning of the
Property upon the termination or expiration of the Development Agreement (if the Project
has not been built), and Developer hereby waives any rights they might otherwise have
to seek judicial review of such City actions to change the development standards, General
Plan designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City ..
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 (attached as Exhibit No. 5 of Instrument No. 20170417-00050720-0) for storm
water/retention purposes for the Project, and City shall execute and deliver a revocable
license agreement to Owner to that effect.
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WHEREFORE, the parties have executed this Agreement as of the date first-
above written.
51
CITY:
CITY OF MOORPARK
By:-------------
Print Name: ----------
TitIe: ------------
OWNER:
Essex Moorpark Owner, L.P.
By:-------------
Print Name: ----------
TitIe: ------------
196
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of Ventura
On ____________ , before me,------------~
insert name and title of the officer)
Notary Public, personally appeared __________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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197
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
State of California
County of Ventura
On ____________ , before me, ____________ _
insert name and title of the officer)
Notary Public, personally appeared __________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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198
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
ALL of Parcel 213 of in that certain Lot Line Adjustment No. 2005-04 in the City of
Moorpark, County of Ventura, State of California, recorded July 21, 2005 as Document
No. 20050721-0178764 or official records in the Office of the County Recorder of said
County, being a portion of Lot "T", Tract No. "L", Rancho Simi, as per map filed in Book
5, Page 5 of Miscellaneous Records (Maps) in the Office of said County Recorder and a
portion of Lot 4, Tract No. 3 as per Map entitled "Map of M.L. Wicks Subdivision of Part
of Tract U and Addition to Moorpark, in the Rancho Simi, Ventura county, California" in
said City, County and State as shown on Map filed in Book 5, Page 37 of said
Miscellaneous Records (maps).
TOGETHER WITH that portion of Parcel IA of in that certain Lot Line Adjustment No.
200503 in the City of Moorpark, County of Ventura, State of California, recorded May 3,
2005 as Document No. 20050503-0108315 or official records in the Office of the County
Recorder of said County, being a portion of Lot "T", Tract No. "L", Rancho Simi as per
map filed in Book 5 Page 5 of Miscellaneous Records (Maps) in the Office of said County
Recorder, lying northerly of the following described line;
BEGINNING at a point in east line of Parcel IA of said Lot Line Adjustment No. 2005-03,
distant thereon North 292.97 feet from the southeasterly corner thereof;
1st Thence, departing said east line South 89°38'32"West 752.05 feet;
2 nd Thence, South 27°20'34West 36.75 feet;
3 rd Thence, South 89°03'54"West 293.78 feet to a point in the west line of said Parcel
1A.
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199
EXHIBIT NO. 2
TO AFFORDABLE HOUSING AGREEMENT
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Low Income 51 % and Above
Type of Number of Household Size
Unit Units Adjustment
1-br 56 2 persons
2-br 46 3 persons
3-br 36 4 persons
Total 138
Very Low Income 31%-50%
Type of Number of Household Size
Unit Units Adjustment
1-br 16 2 persons
2-br 12 3 persons
3-br 12 4 persons
Total 40
Extremely Low Income 30% and Below
Type of
Unit
1-br
2-br
3-br
Total
Total
Units
Number
Units
of Household Size
Adjustment
8 2 persons
6 3 persons
6 4 persons
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198
Utility
Allowance
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
TBD
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Affordable Housing Owner may not charge
additional rent based on a larger actual household size.
The units restricted by this Affordable Housing Agreement, and subject to
the California Health and Safety Code (and related California Code of Regulations)
definitions, rent limits/calculations, and income levels are as follows:
55
200
All Extremely Low Income Units (i.e. 20 units); all Very Low Income Units (i.e.
40 units) and thirty-eight (38) of the Low Income Units (consisting of 18 one-
bedroom units; 10 two-bedroom units; and 10 three bedroom units), for a total of
98 units.
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201
EXHIBIT NO. 3
TO AFFORDABLE HOUSING AGREEMENT
FORM OF CERTIFICATIONS OF TENANT ELIGIBILITY
New Certification / Recertification Unit Number --------------
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income
Re: (NAME and ADDRESS of Apartment Building)
To:
I/We the undersigned state that I/we have read and answered fully, frankly and personally
each of the following questions for all persons who are to occupy the unit being applied
for in the above apartment project. Listed below are the names of all persons who intend
to reside in the unit:
1.
Name of Members
Of the
Household
Income Computation
2.
Relationship
to Head of
Household
3.
Age
4.
Social Security
Number
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
for a unit is$ _________ 1
If this form is being completed in accordance with recertification of an Extremely Low Income Tenant's or Very Low
Income Tenant's or a Low Income Tenant's occupancy of an Extremely Low Income Unit or a Very Low Income Unit or a
Low Income Unit, respectively, this form must be completed based upon the current income of the occupants.
57
202
Included in the total anticipated income listed above are:
a) the full amount, before any payroll deductions, of wages and salaries, overtime
pay, commissions, fees, tips and bonuses and other compensation for personal services;
b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets from
the operation of a business or profession will be included in income, except to the extent
the withdrawal is reimbursement of cash or assets invested in the operation by the family;
c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only as
authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from an
investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net family
assets in excess of $5,000, annual income shall include the greater of the actual income
derived from all net family assets or a percentage of the value of such assets based on
the current passbook savings rate.
d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that are
received in a lump sum amount or in prospective monthly amounts;
e) payments in lieu of earnings, such as unemployment and disability compensation,
workers' compensation and severance pay;
f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the welfare
assistance agency in accordance with the actual cost of shelter and utilities, the amount
of welfare assistance income to be included as income shall consist of:
1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
2) the maximum amount that the welfare assistance agency could in fact allow
the family for shelter and utilities. If the family's welfare assistance is ratably reduced
form the standard of need by applying a percentage, the amount calculated under this
paragraph shall be the amount resulting from one application of the percentage;
g) periodic and determinable allowances, such as alimony and child support
payments, and regular contributions or gifts received from organizations or from persons
not residing in the dwelling;
58
203
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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204
5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family member as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
i) temporary , nonrecurring or sporadic income (including gifts);
U) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
k) earnings in excess of $480 for each full-term student 18 years old or older
excluding the head of household and spouse);
I) adoption assistance payments in excess of $480 per adopted child; and
m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or ----------
b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Yes No ----------
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205
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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206
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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207
FOR COMPLETION BY OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household in 6 above: $ -----
b. (1) If the amount entered in 7(c)above is yes, enter the total amount
entered in 7(d)(2), subtract from that figure the amount entered in 7(d)(3) and enter the
remaining balance ($ _____ );
2) Multiply the amount entered in 7(d)(1) times the current passbook savings
rate as determined by HUD to determine what the total annual earnings on the amount in
7(d)(1) would be if invested in passbook savings ($ ------~· subtract from
that figure the amount entered in 7(d)(3) and enter the remaining balance ($
3)
above:$
Enter at right the greater of the amount calculated under (1) or (2)
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3)): $ _______ _
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
Qualifies the applicant(s) as an Extremely Low Income Tenant(s).
3. Number of apartment unit assigned: ____ Bedroom size: ____ _
Rent:$ ------
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other( ________________ )
6. Is occupant a City of Moorpark resident on the waiting list who was given priority?
Yes:___ No: __ _
Manager Date
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208
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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
Overtime
Bonuses
Commissions
Current Base Pay
Gross) Other Income
Avg. Total Hours
Worked Weekly
Total Current Income --------
Year-to-Date Income --------
I Pay Period: [] Weekly I [ ] Bi-weekly I [ ] Monthly I [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? Yes No
If so, please indicate the amount of anticipated increase$ _____ per ____ start
date: ----
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
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APPLICANT
hereby grant you perm1ss1on to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
Date
Print Name (Resident)
Please send to:
Management Co.
or Owner)
Signature (Resident)
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INCOME VERIFICATION
for self-employed persons)
hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
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INCOME VERIFICATION
for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to __________________ the
specific information requested below:
Date: -----------------------------
Signature: __________________________ _
Social Security No.: _________ _
Name (Print): ____________ _
Address(Print) ________________________ _
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): ________ _ Amount:$ -----------
Medicare Deductions: $ -----------
Are benefits expected to change? [ ] Yes [ ] No
If yes, please state date and amount:
Date: of change ----------
Amount$ ---------
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If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption:
Amount: ----------------
Date:
Signature:
Title:
Please send form to:
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INCOME VERIFICATION
for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the ______________ Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date: ----------------------------
Signature: __________________________ _
Caseload Number: ----------
Name (Print): __________ _
Case Number:
Case Worker: -----------
1. Number of persons included in budget: __________ _
2. Total monthly budget$ _______________ _
a) Amount of grant$ _______ _
b) Date aid last began: ________ _
c)Other income and source: _________________ _
d) Is other income included in total budget? Yes No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.): ____ _
4. If recipient is not receiving full grant, please indicate reason:
Overpayment due to client's failure to report other income
Computation error
Other: --------------------------
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Date when full grant will resume: ___________________ _
Date: --------------
Case Worker's Signature: _________ _
Telephone: ___________ _
District Office: --------------
Your very early response will be appreciated.
Please return form to:
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DECLARATION OF NO INCOME
As managing agents for
Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
CERTIFICATION
Name of Management Company
By:
Name and Title
I, _____________ , do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
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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 payer's
income, please indicate the average amount per period.
Tvoe of Benefit Amount Freauencv
Child Support ( ) weekly ( ) monthly (
yearly
Family Support ( ) weekly ( ) monthly (
yearly
Alimony ( ) weekly ( ) monthly (
yearly
Other ( ) weekly ( ) monthly (
yearly
Please list
type)
Are monies paid to offset an AFDC grant? [ ] Yes [ No
Do you anticipate any changes in the next 12 months? ] Yes [ ] No
Comments: _________________________ _
Signature
SSN#:
of Source: --------------
Date Completed Form: ____________ _
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EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING __ _
The undersigned, ____________ , as the authorized
representative of ___________ (the "Owner"), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites ("Developer") and the City of the City of Moorpark (the
City"), dated as of ________ , 20_.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held 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 E
FORMS OF CITY LOAN NOTE AND CITY LOAN DEED OF TRUST
UNDER SEPARATE PAGE)
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3,890,500.00
PROMISSORY NOTE
City Loan)
2021
FOR VALUE RECEIVED, Moorpark Casey Road LP, a California limited
partnership (the "Borrower"), hereby promises to pay to the order of the City of Moorpark, a
California municipal corporation (the "Lender" or ("City"), whose address is 799 Moorpark
A venue, Moorpark, California 93021, the principal amount of Three Million Eight Hundred
Ninety-Thousand Five Hundred Dollars and 00/100 ($3,890,500).
1. The Loan. This Promissory Note (the "Note") evidences the obligation of the
Borrower to the Lender for the repayment of funds loaned to the Borrower for the payment of
certain City development fees (the "Loan") in the connection with the development of a 200-unit
low-income apartment complex to be located in the City of Moorpark (the "Project").
2. Interest. Simple interest shall accrue on the outstanding principal balance of this
Promissory Note ("Note") from the date of this Note at a rate equal to 3% per annum until the
Maturity Date (as defined below). Interest shall be calculated based on a 365 day year, upon actual
days elapsed.
3. Maturity Date. The principal amount of this Note along with all accrued and unpaid
interest and/or other amounts due shall be due and payable on the fifty-fifth (55) anniversary of
the date of issuance of certificates of occupancy for the Project (the "Maturity Date"); provided,
however, that the Maturity Date may be accelerated in accordance with the terms and provisions
of this Note.
4. Payments. Beginning in the year following the year in which the Project receives
its certificate of occupancy, annual payments of interest and principal hereunder for each year shall
be made on or before June 1 of the following year only to the extent of 50% may be reduced and
shared pro rata with other soft lenders in the sole and absolute discretion of the City Manager of
available Residual Recepits (as defined below). On or prior to the date that the Borrower pays its
annual payment, Borrower shall submit the following to the City: (1) A statement of Residual
Receipts for the relevant period, for the Project and the status of all reserve funds, including
without limitation; (2) A statement from the independent public accountant that audited the
Borrower's financial records for the relevant period, which statement must confirm that Borrower's
calculation of the City's share of Residual Receipts is accurate based on Gross Revenue (as defined
below) and Annual Operating Expenses (as defined below); and (3) Any additional documentation
reasonably required by the City to substantiate Borrower's calculation of City's share of Residual
Receipts. All payments received by Lender shall be applied first to accrued interest then to the
unpaid principal balance.
For the purposes of this Note, the term "Residual Receipts" in a particular calendar year
shall mean the amount by which Gross Revenue exceeds Annual Operating Expenses.
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Gross Revenue" means for each calendar year, all revenue, income, receipts, and other
consideration actually received by the borrower from operation and leasing of the Project. Gross
Revenue includes, but is not limited to: (1) All rents, fees and charges paid by tenants, payments
or other rental subsidy payments received for the dwelling units, deposits forfeited by tenants, all
cancellation fees, price index adjustments and any other rental adjustments to leases or rental
agreements resulting in actual income to Borrower; (2) The proceeds of business interruption or
similar insurance; (3) Any payment received in consideration for the leasing or other use of any
portion of the project; ( 4) Subject to the rights of senior lenders, the proceeds of casualty insurance
to the extent not utilized to repair or rebuild the project ( or applied toward the cost of recovering
such proceeds); (5) Subject to the rights of senior lenders, condemnation awards for a taking of
part or all of the project for a temporary period; and (6) Gross Revenue shall exclude tenants'
security deposits, loan proceeds, capital contributions or other similar advances.
Annual Operating Expenses" with respect to a particular calendar year means the
following costs reasonably and actually incurred for operation and maintenance of the project to
the extent that they are consistent with an annual independent audit performed by a certified public
accountant using generally accepted accounting principles: (1) Property taxes and assessments
imposed on the property; (2) Debt service and associated fees currently due on a non-optional basis
excluding debt service due from residual receipts or surplus cash of the project) on loans
associated with development of the project and approved by the City in the approved financing
plan; (3) Property management fees and reimbursements, not to exceed fees and reimbursements
which are standard in the industry, and pursuant to a management contract approved by the City;
4) Premiums for property damage and liability insurance; (5) Any annual license or certificate of
occupancy fees required for operation of the project; (6) Annual regulatory compliance monitoring
fees payable to the City; (7) Security services; (8) Advertising and marketing costs; (9) Cash
deposited into reserves for capital replacements of the project in an amount to be approved by the
City as part of the approved financing plan; ( 10) Partnership management fees in the amount
approved by the City as part of the approved financing plan; ( 11) Utility services not paid for
directly by tenants, including without limitation, water, sewer, and trash collection; (12)
Maintenance and repair, including pest control, landscaping, grounds maintenance, painting and
decorating, cleaning, common systems repair,janitorial supplies and services; (13) Social services
fees and expenses; (14) Annual audit fees, inspection fees, or monitoring fees required in relation
to any approved financing; ( 15) Extraordinary operating costs specifically approved by the City in
its reasonable discretion; (16) Payments of deductibles in connection with casualty insurance
claims not normally paid from reserves, the amount of uninsured losses actually replaced, repaired
or restored, and not normally paid from reserves; ( 17) Reasonable accounting fees and legal fees;
18) Payments of Deferred Developer Fee; and (19) Other ordinary and reasonable operating
expenses approved by the City in its reasonable discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation, amortization, depletion or
other non-cash expenses or, any amount expended from a reserve account.
5. Prepayment. The principal and interest of this Note may be voluntarily prepaid at
any time, in its entirety or in any partial amount, without premium or penalty.
6. Security. Payment of the indebtedness evidenced by this Note is secured by that
certain Subordinated Deed of Trust, Fixture Filing, and Assignment of Rents (City Loan) (the
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Deed of Trust"), of even date herewith, and made by Borrower, as trustor, to Commonwealth
Land Title Insurance Company, as trustee, for the benefit of Lender, as beneficiary, which
encumbers real property in the County of Ventura, State of California, as more particularly
described in Exhibit A to the Deed of Trust, together with the improvements to be located thereon.
7. Events of Default. The occurrence of any of the following, whatever the reason
therefor, shall constitute an "Event of Default" hereunder:
a. Borrower fails to make any payment of principal or interest hereunder when
due; or
b. Borrower fails to pay any other amount owing to Lender under this Note,
or fails to perform any other obligation under this Note; or
c. Borrower is dissolved, liquidated or terminated, or all or substantially all of
the assets of Borrower are sold or otherwise transferred without Lender's prior written consent; or
d. Borrower is the subject of an order for relief by a bankruptcy court, or is
unable or admits its inability to pay its debts as they mature, or makes an assignment for the benefit
of creditors; or Borrower applies for or consents to the appointment of any rehabilitator or similar
officer for it or any part of its property; or any receiver, trustee, custodian, conservator, liquidator,
rehabilitator or similar officer is appointed without the application or consent of Borrower and the
appointment continues undischarged or unstayed for 90 days; or Borrower institutes or consents
to any bankruptcy, insolvency, reorganization, arrangement, readjustment or debt, dissolution,
custodianship, conservatorship, liquidation, rehabilitation or similar proceeding relating to it or
any part of its property; or any similar proceeding is instituted without the consent of Borrower,
as the case may be, and continues undismissed or unstayed for 90 days; or any judgment, writ,
warrant or attachment or execution, or similar process is issued or levied against any property of
Borrower and is not released, vacated or fully bonded within 90 days after its issue or levy; or
e. An event of default by Borrower has occurred and is continuimg past
applicable notice and cure periods under that certain Amended and Restated Affordable Housing
Agreement to be entered into between Lender and Borrower and recorded in the Official Records
of Ventura County concurrently herewith.
Lender agrees any cure of any Event of Default or default made by the investor
limited partner of Borrower shall be deemed to be a cure by Borrower and shall be accepted or
rejected on the same basis as if made by Borrower.
8. Acceleration and Other Remedies. If the Lender believes, in it sole judgment, that
an Event of Default has occurred and such Event of Default is not cured within sixty (60) days
after written notice to Borrower and the investor limited partner of Borrower, the Lender, at its
option, within sixty (60) days thereafter, may declare the outstanding principal and interest to be
immediately due and payable. Notwithstanding the foregoing, the cure periods hereunder shall not
apply to the final payment due hereunder on the Maturity Date or to any acceleration of the Loan.
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9. Subordination; No Acceleration Upon Transfer or Refinancing.
a. Lender shall execute commercially reasonable subordination agreements as
requested by the Borrower's senior lender(s) to subordinate this Note and the Deed of Trust
to the Borrower's senior bond financing encumbering the Project property.
b. The Borrower shall be permitted to refinance its senior bond financing and
the Lender shall also subordinate this Note and the Deed of Trust to any refinancing of
such senior bond financing so long as the amount to be subordinated does not exceed the
original principal balance of such loan plus reasonable closing costs. In such event,
subordination of the Loan to such refinancing shall be subject to the Lender's sole
discretion.
I 0. Non-Recourse. Anything contained in any provision of the Deed of Trust or this
Note notwithstanding, the Loan shall be a nonrecourse obligation of Borrower and its partners
except in the event of fraud or a material misrepresentation of fact by Borrower.
11. Application of Payments. All payments made hereunder shall be applied first to
interest due and then in reduction of the principal balance.
12. Waivers. Borrower hereby waives presentment, demand, protest, notice of
dishonor, notice of protest and all other notices and demands of every kind that would otherwise
be available in connection with this Note.
13. Notice. Any notice, consent or approval required or permitted to be given under
this Agreement shall be in writing and shall be deemed to have been given (i) one business day
after being deposited with Federal Express or another reliable overnight courier service for next
day delivery, (ii) upon electronic mail transmission ( except that if the date of such transmission is
not a business day, then such notice shall be deemed to be given on the first business day following
such transmission), or (iii) two business days after being deposited in the United States mail ,
registered or certified mail, postage prepaid, return receipt required, and addressed as follows:
If to Borrower:
With a copy to:
With a copy to :
With a copy to:
Danco Communities
5251 Ericson Way
Arcata, CA 95521
Attention: Chris Dart
cdart@ danco-group.com)
Odu & Associates, PC
31805 Temecula Parkway #720
Temecula, CA 92592
Attention: Nkechi C. Odu, Esq.
nkechi @ odulaw.com)
EQUITY INVESTOR]
EQUITY INVESTOR COUNSEL]
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If to Lender:
With a copy to:
City of Moorpark
799 Moorpark A venue
Moorpark, California 93021
Attention: Troy Brown, City Manager
CityManager@moorparkca.gov)
Addresses for notice may be changed from time to time by written notice to the other party.
15. Miscellaneous. Time is of the essence hereof. All payments hereunder shall be
made in lawful money of the United States of America. This Note shall be governed by the laws
of the State of California.
SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the parties hereto have executed this Assignment effective as
of the date first above written.
BORROWER"
By: Johnson & Johnson Investments, LLC, a California limited liability company
Its Co-Administrative General Partner
By: __________ _
Daniel J. Johnson, Member
By: Community Revitalization and Development Corporation
Its Managing General Partner
By: -------------
David Rutledge, President
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RECORDING REQUESTED BY
Commonwealth Land Title Insurance Company
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark A venue
Moorpark, California 93021
Attention: City Clerk
Space Above This Line For Recorder's Use)
SUBORDINATED DEED OF TRUST,
FIXTURE FILING, AND ASSIGNMENT OF RENTS
THIS SUBORDINATED DEED OF TRUST, FIXTURE FILING, AND ASSIGNMENT
OF RENTS ("Subordinated Deed of Trust") is made on this _day of _____ 2022, by
Moorpark Casey Road LP, a California limited partnership, as trustor ("Borrower") to
Commonwealth Land Title Insurance Company ("Trustee"), for the benefit of CITY OF
MOO RPARK, a California municipal corporation ("Lender").
The Borrower, in consideration of the indebtedness recited and the trust created in this
Subordinated Deed of Trust, irrevocably grants and conveys to Trustee, in trust, with power of
sale all of its right title and interest in and to that certain real property located in the City of
Moorpark, County of Ventura, State of California, legally described in "Exhibit A" attached
hereto and made a part hereof.
Together with all of the improvements now or hereafter erected on said property, and all
easements, rights, appurtenances, rents (subject, however, to the rights and authorities given in
this Subordinated Deed of Trust to the Lender to collect and apply such rents), royalties, mineral,
oil and gas rights and profits, water, water rights, and water stock, and all fixtures now or
hereafter attached to said property, all of which including replacements and additions thereto,
shall be deemed to be and remain a part of the property covered by this Subordinated Deed of
Trust; and all of the foregoing, together with said property are referred to in this Subordinated
Deed of Trust as the "Property";
This Deed of Trust constitutes a financing statement filed as a fixture filing under
Article 9 of the California Uniform Commercial Code, as amended or recodified from time to
time, covering any property which now is or later may become fixtures attached to the Property.
For this purpose, Borrower is debtor and Lender is secured party.
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To secure for the benefit of Lender the repayment of the indebtedness evidenced by the
Borrower's promissory note dated ______ 2022 (the "Note") in the principal sum of
3,890,500.00 and the performance of the covenants and agreements of the Borrower contained
in this Subordinated Deed of Trust, the Note, and that certain Amended and Restated Affordable
Housing Agreement to be entered into between Lender and Borrower and recorded in the
Official Records of Ventura County concurrently herewith.
Borrower covenants and agrees as follows:
PAYMENT OF PRINCIPAL AND INTEREST. Borrower shall pay when due the
interest and the principal of the indebtedness evidenced by the Note from the sources and
pursuant to the terms of the Note.
COMPLIANCE WITH SENIOR DEED OF TRUST. Borrower covenants and agrees to
comply with the terms and conditions of any senior deeds of trust recorded against the Property
collectively, the "Senior Encumbrances").
CHARGES AND LIENS. Borrower shall pay all taxes, assessments and other charges,
fines and impositions attributable to the Property which may attain a priority over this
Subordinated Deed of Trust. Borrower shall promptly pay when due all installments or
payments required by Lender and comply with all obligations of any deed of trust that is prior to
this Subordinated Deed of Trust.
INSURANCE PROCEEDS. Any insurance proceeds received as a result of damage to
the Property from fire or other calamity shall be first expended as required by any Senior
Encumbrances.
PROTECTION OF LENDER'S SECURITY. If Borrower fails to perform the covenants
and agreements contained in this Subordinated Deed of Trust, or if any action or proceeding is
commenced which materially affects the Lender's interest in the Property, including, but not
limited to, default on or foreclosure of a prior deed of trust, eminent domain, insolvency, code
enforcement, or arrangement or proceedings involving a bankrupt or decedent, then the Lender at
Lender's option, upon notice to the Borrower, may make such appearances, disburse such sums
and take such action as is necessary to protect the Lender's interest including, but not limited to,
disbursement of reasonable attorney's fees and entry upon the Property to make repairs, but shall
have no right of reimbursement.
INSPECTION. Lender may make or cause to be made reasonable entries upon and
inspections of the Property, provided that the Lender shall give Borrower notice prior to any such
inspection specifying reasonable cause therefor related to the Lender's interest in the Property.
CONDEMNATION. Subject to the rights of the holder of a prior deed of trust, the
proceeds of any award or claim for damages, direct or consequential, in connection with any
condemnation or other taking of the Property, or part thereof, or for conveyance in lieu of
condemnation, are hereby assigned and shall be paid to Lender.
In the event of a total taking of the Property, the proceeds shall be treated as if
received from a sale of the Property. The proceeds shall be applied to the sums to be repaid in
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the amount and manner described in the Senior Encumbrances and the documents evidencing the
indebtedness secured thereby. Any part of the proceeds remaining after these amounts have been
paid shall be paid to the Borrower. In the event of a partial taking of the Property, unless
Borrower and Lender agree in writing, the proceeds shall be treated as if received from a sale of
that portion of the Property which is taken in the condemnation. The percentage value of the
portion taken, as compared to the full value of the entire Property, shall be determined by
dividing the condemnation proceeds by the fair market value of the entire Property just prior to
the taking. This percentage value, once determined, shall be used in the following manner to
allocate the condemnation proceeds:
a. First, to the payment of any amount owing under the Senior
Encumbrances and the documents evidencing the indebtedness secured thereby;
b. Second, to payment of the Note;
c. Third, to the Borrower.
BORROWER NOT RELEASED. Extension of the time for payment or modification of
amortization of the sums secured by this Subordinated Deed of Trust granted by the Lender to
any successor in interest of Borrower shall not operate to release, in any manner, the liability of
the original Borrower and Borrower's successors in interest. Lender shall not be required to
commence proceedings against such successor or refuse to extend time for payment or
modification of amortization of the sums secured by this Subordinated Deed of Trust by reason
of any demand made by the original Borrower and Borrower's successors in interest.
FORBEARANCE BY LENDER NOT AW AIYER. Any forbearance by the Lender in
exercising any right or remedy hereunder, otherwise afforded by applicable law, shall not be a
waiver of or preclude the exercise of any such right or remedy. The procurement of insurance or
the payment of taxes or other liens or charges by Lender shall not be a waiver of Lender's right to
accelerate the maturity of the indebtedness secured by this Subordinated Deed of Trust.
REMEDIES CUMULATIVE. All remedies provided in this Subordinated Deed of Trust
are distinct and cumulative to any other right or remedy under this Subordinated Deed of Trust or
afforded by law or equity, and may be exercised concurrently, independently or successively.
SUCCESSORS AND ASSIGNS BOUND; JOINT AND SEVERAL LIABILITY;
CAPTIONS. The covenants and agreements contained in this Subordinated Deed of Trust shall
bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and
Borrower, subject to the provisions of Section 16 hereof. All covenants and agreements of
Borrower shall be joint and several. The captions and headings of the Sections of this
Subordinated Deed of Trust are for convenience only and are not to be used to interpret or define
the provisions hereof.
NOTICE. Except for any notice required under applicable law to be given in another
manner, any notice to Borrower or Lender provided for in this Subordinated Deed of Trust shall
be given at the addresses provided in the Note.
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GOVERNING LAW; SEVERABILITY. This Subordinated Deed of Trust shall be
governed by the laws of the State of California. In the event that any provision or clause of this
Subordinated Deed of Trust or the Note as incorporated herein conflicts with applicable law,
such conflict shall not affect other provisions of this Subordinated Deed of Trust or the Note
which can be given effect without the conflicting provision, and to this end the provisions of the
Subordinated Deed of Trust and Note are declared to be severable.
TRANSFER OF THE PROPERTY. If all or any of the Property is sold or transferred by
Borrower, excluding permitted transfers pursuant to this Subordinated Deed of Trust or the Note,
all the sums secured by this Subordinated Deed of Trust shall be immediately due and payable.
In the event of such an acceleration, Lender shall mail Borrower notice of the acceleration in
accordance with Section 12 hereof. Such notice shall provide a period of not less than 60 days
from the date the notice is mailed within which the Borrower may pay the sums declared due. If
the Borrower fails to pay such sums prior to the expiration of such period, Lender may, without
further notice or demand on Borrower, invoke any remedies permitted by Section 16 hereof.
ACCELERATION; REMEDIES Except as provided in Section 15 hereof, upon
Borrower's breach of any covenant or agreement of Borrower in this Subordinated Deed of Trust
or the Note as incorporated by reference in this Subordinated Deed of Trust, including the
covenants to pay, when due, any sums secured by this Subordinated Deed of Trust, Lender, prior
to acceleration, shall mail notice to Borrower as provide in Section 12 hereof specifying: (a) the
breach; (b) the action required to cure such breach; ( c) a date by which such breach must be
cured; and ( d) that failure to cure such breach on or before the date specified in the notice may
result in acceleration of the sums secured by this Subordinated Deed of Trust and sale of the
Property. If the breach is not cured on or before the date specified in the notice, the Lender, at its
option, may seek remedies in the manner provided in the Note. Lender shall be entitled to
collect all reasonable costs and expenses incurred in pursuing the remedies provided in this
Section 16, including, but not limited to, reasonable attorneys' fees.
Subject to the terms and conditions provided herein, if Lender invokes the power
of sale, Lender shall have appraised, or shall cause Trustee to have appraised, the Property to
determine its fair market value. The Lender shall also execute or cause Trustee to execute a
written notice of the occurrence of an event of default and of Lender's election to cause Property
to be sold, and shall cause such notice to be recorded in each county in which the Property or
some part thereof is located. Lender or Trustee shall mail copies of such notice in a manner
prescribed by applicable law. After the lapse of such time as may be required by applicable law,
Trustee, without demand on Borrower, shall sell the Property at public auction to the highest
bidder at the time and place and under the terms designated in the notice of sale in one or more
parcels and in such order as Trustee may determine. Trustee may postpone sale of all or any
parcel of the Property by public announcement at the time and place of any previously scheduled
sale. Lender or Lender's designee may purchase the Property at any sale.
Trustee shall deliver to the purchaser Trustee's deed conveying the Property so
sold without any covenant or warranty, expressed or implied. The recitals in the Trustee's deed
shall be prime facie evidence of the truth of the statements made therein. Trustee shall apply the
proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale,
including, but not limited to, reasonable Trustee and attorneys' fees and costs of title evidence;
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b) to all sums secured by the lien of some other or later security instrument, as evidenced by a
Note, by and between the Borrower and Borrower's lender, that is either prior in lien priority to
the priority of this Subordinated Deed of Trust or to which the Lender has subordinated its lien
rights and, thereby, placed itself in a subordinated position, ( c) to all sums secured by this
Subordinated Deed of Trust, as evidenced by the Note; and ( d) the excess, if any, to the person or
persons legally entitled thereto.
BORROWER'S RIGHT TO REINSTATE. Notwithstanding Lender's acceleration of the
sums secured by this Subordinated Deed of Trust, Borrower shall have the right to have any
proceedings begun by Lender to enforce covenants of this Subordinated Deed of Trust relating to
sums due and payable by Borrower discontinued at any time prior to five days before the
Property is scheduled for sale pursuant to the power of sale contained in this Subordinated Deed
of Trust or at any time prior to entry of a judgment enforcing this Subordinated Deed of Trust if:
a) Borrower pays Lender all sums which would be then due under this Subordinated Deed of
Trust, the Note and notes securing Future Advances, if any, had no acceleration occmTed; (b)
Borrower pays all reasonable expenses incurred by Lender and Trustee in enforcing the
covenants and agreements of Borrower contained in this Subordinated Deed of Trust and in
enforcing Lender's and Trustee's remedies as provided in Section 16 hereof, including, but not
limited to reasonable attorneys' fees; (c) Borrower takes such actions as Lender may reasonably
require to assure that the lien of this Subordinated Deed of Trust, Lender's interest in the
Property, and Borrower's obligation to pay the sums secured by this Subordinated Deed of Trust
shall continue unimpaired. Upon such payment and cure by Borrower, this Subordinated Deed
of Trust and the obligations secured hereby shall remain in full force and effect as if no
acceleration had occurred.
ASSIGNMENT OF RENTS; APPOINTMENT OF RECEIVER; LENDER IN
POSSESSION. As additional security hereunder, subject to the rights of senior lien holders,
Borrower hereby assigns to Lender the rents of the Property, provided that Borrower shall, prior
to acceleration under Section 15 hereof, have the right to collect such rents as they become due.
Upon acceleration under Section 15 hereof or abandonment of the Property, Lender, in person,
by agent or by judicially appointed receiver, shall be entitled to enter upon, take possession of,
rent and manage the Property and to collect the rents of the Property. All rents collected by the
Lender or by a judicially appointed receiver shall be applied first to payment of the cost of
management of the Property and collection of rents, including, but not limited to, receiver's fees,
premiums on receiver's bonds and reasonable attorneys' fees, and then to the sums secured by
this Subordinated Deed of Trust. Lender and the receiver shall be liable to account for those
rents actually received and expenditures actually incurred.
RECONVEY ANCE. Upon payment of all sums evidenced by the Note and secured by
this Subordinated Deed of Trust, Trustee shall reconvey the Property without warranty and
without charge to the person or persons legally entitled thereto. Such person or persons shall pay
all costs ofrecordation, if any.
SUBSTITUTE TRUSTEE. Lender, at Lender's option, may from time to time remove
Trustee and appoint a successor trustee to act as Trustee under this Subordinated Deed of Trust.
Without conveyance of the Property, the successor trustee shall succeed to all the title, power
and duties conferred upon the Trustee in this Subordinated Deed of Trust and by applicable law.
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REQUEST FOR NOTICES. Borrower requests that copies of the notice of default and
notice of sale be sent to the Borrower's address.
ST A TEMENT OF OBLIGATION. The Lender may collect a fee not to exceed $15 .00
for furnishing the statement of obligation as provided by Section 2943 of the Civil Code of the
State of California.
SUBORDINATION ACKNOWLEDGMENT. Beneficiary hereby acknowledges that the
loan secured by this Subordinated Deed of Trust is also subordinate to the extended use
agreement required to be executed by Borrower pursuant to Section 42(h)(6)(B) of the Internal
Revenue Code, for purposes of the low-income housing tax credits to be allocated to Borrower.
In addition, Beneficiary hereby acknowledges that the loan secured by this Subordinated Deed of
Trust is further subordinate to Section 42(h)(6)(e)(ii) of the Internal Revenue Code, which
prohibits the eviction or termination of a tenancy, other than for good cause, of an existing tenant
of any low-income housing tax credit unit or any increase in the gross rent with respect to such
unit, not otherwise permitted under Section 42, for a period of three (3) years after the date the
Property is acquired by Lender through foreclosure or instrument in lieu of foreclosure.
FINANCING STATEMENT. This Deed of Trust shall constitute a financing statement
pursuant to California UCC §9-502, and shall be filed as a fixture filing in the Official Records
of the County in which the Property is located and covers goods which are or are to become
fixtures on the Property.
SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS THEREOF, Borrower has executed this Subordinated Deed of Trust on the day
and year first above written.
BORROWER:
By: Johnson & Johnson Investments, LLC, a California limited liability company
Its Co-Administrative General Partner
By:-----------
Daniel J. Johnson, Member
By: Community Revitalization and Development Corporation
Its Managing General Partner
By: __________ _
David Rutledge, President
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235
A Notary public or other officer completing this certificate verifies only the identity
of the individual who signed the document to which this certificate is attached, and
not the truthfulness, accuracy, or validity of that document.
STA TE OF CALIFORNIA
COUNTY OF --------
SS.
On ___________ , before me, _____________ , a
Notary Public in and for said State, personally appeared, ________ _
who proved to me the basis of satisfactory evidence to be the
person(s) whose name(s) is/are subscribed to the within instrument and acknowledged
to me that he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity(ies)
upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature of Notary Public
SEAL]
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EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF
VENTURA, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT
NO.20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-
04 IN THE CITY OF MOO RP ARK, COUNTY OF VENTURA, STATE OF
CALIFORNIA, RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764
OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI,
AS PER MAP FILED IN BOOK 5, PAGE 5 OF MISCELLANEOUS RECORDS
MAPS) IN THE OFFICE OF SAID COUNTY RECORDER AND A PORTION OF
LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP OF M.L. WICKS
SUBDIVISION OF PART OF TRACT U AND ADDITION TO MOORPARK, IN THE
RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID CITY, COUNTY
AND ST A TE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF SAID
MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL IA OF IN THAT CERTAIN LOT
LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF
VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT
NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T",
TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK 5 PAGE 5 OF
MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY
RECORDER, LYING NORTHERLY OF THE FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL IA OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM
THE SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05
FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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237
3RD THENCE, SOUTH 89° 03'54" WEST 293.78 FEET TO A POINT IN THE WEST
LINE OF SAID PARCEL lA.
EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON
THE SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL
RIGHTS IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFELT,
IN THE DEED RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL
RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE
TOT AL OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT
HOWEVER, THE RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID
LAND WITHIN 500 FEET OF THE PRESENT SURF ACE MEASURED
VERTICALLY THEREFROM, AS RESERVED BY RILEY SPENCE AND DORA E.
SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274 OF OFFICIAL
RECORDS.
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238
EXHIBIT F
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
Design Phase: Complete on or before December 31, 2021
Initial Tax-Exempt Bond and Tax Credit Applications: September 9, 2021
Tax-Exempt Bond and Tax Credit Allocations (if initial application is successful):
December 8, 2021
Plan Check/ Building Permits: June 2022
Date property must be acquired by Affordable Housing Owner: October 29, 2022
Evidence to City of all debt/equity funds for all Project costs (with comprehensive
Project budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond
Financing: Within 180 days of receipt of Bond and Tax Credit Allocations
Grading: To commence within 30 days after acquisition of property by Affordable
Housing Owner or affiliate
Construction: 24 months from commencement of grading
Lease-Up: approximately 3 months following construction completion.
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239
NEW EXHIBIT J TO DEVELOPMENT AGREEMENT (POWER LINES)
UNDER SEPARATE ATTACHMENT)
Replaces Exhibit D and Exhibit G to the Development Agreement (recorded on
April 17, 2017 by Instrument No. 20170417- 00050720-0)
95
240
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241
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to §§ 6103, 27383 and 27388.1
of the California Government Code
2022000115909
Recorded in Official Records
Ventura County Clerk-Recorder
Mark A. Lunn
12/14/2022
02:24 PM VEN CERVANTD
Titles: 1 Pages: 82
Fees: $0.00
SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
ESSEX MOORPARK OWNER, LP.
12853-0092\2729176v7 .doc
ATTACHMENT 3
242
SECOND AMENDMENT
TO DEVELOPMENT AGREEMENT
This SECOND AMENDMENT TO DEVELOPMENT AGREEMENT ("Amendment")
is dated as of Deambe-r 2 , 2022, and is entered into by and between the CITY OF
MOORPARK, a municipal corporation ("City"), and ESSEX MOORPARK OWNER, L.P.,
a California limited partnership ("Developer").
RECITALS
WHEREAS, the City and Developer entered into that certain Development
Agreement dated April 17, 2017, which was recorded on April 17, 2017 as Document No.
20170417-00050720-0 in the Official Records of Ventura County, California, and
amended it by a First Amendment of Development Agreement ("First Amendment") dated
August 2, 2022 which was recorded on August 4, 2022 as Document No. 2022-
000082017 in such Official Records (as amended, the "DA");
WHEREAS, Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to hereinafter as the
"Property"); and
WHEREAS, City and Developer desire to amend the DA to modify certain portions
of the Amended and Restated Affordable Housing Agreement that was attached as
Exhibit D to the First Amendment of Development Agreement, extend the date for
satisfying certain conditions as set forth herein and make certain corrections to the First
Amendment and its exhibits.
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendments.
a. Section 2 of the First Amendment is hereby amended to change the
cross reference of "Section 16" that is contained therein to "Section 19"
and to extend the October 29, 2022 date set forth therein to December
31, 2022.
b. The first paragraph of Section 10 of the First Amendment is hereby
deleted in its entirety and revised to read as follows:
12853-0092\2729176v7 .doc
"Conveyance of Land for Street Widening; Relocation and
Undergrounding of SCE Lines. Substantially concurrently with
the conveyance of the Property to Affordable Housing Owner
(i.e. immediately after such conveyance), and subject to the
issuance of a reasonable owners title policy to City at the cost
of the Affordable Housing Owner, Affordable Housing Owner
shall, in order to enable the City to widen High Street, convey to
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243
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.
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g. The form and content of the Offsite Improvement Performance and
Payment Bonds which are to be Exhibit K of the First Amendment are
attached as Exhibit "D" hereto.
2. Counterparts. This Amendment may be executed and recorded in
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
3. Except as amended herein, all other provisions of the DA shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed the day and year first above written.
DEVELOPER:
ESSEX MOORPARK OWNER, LP.
a California limited partnership
By: Essex Moorpark GP, L.P.
a California limited partnership
Its: General Partner
CITY:
CITY OF MOORPARK,
a municipal corporation
By:
Janice S . Parvin, Mayor
By: Essex Management Corporation ATTEST:
a California corporation
Its : General Partner
Ky Spangler, City Clerk
APPROVED AS TO FORM :
By:
Kevin G. Ennis, City Attorney
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245
g. The form and content of the Offsite Improvement Performance and
Payment Bonds which are to be Exhibit K of the First Amendment are
attached as Exhibit "D" hereto.
2. Counterparts. This Amendment may be executed and recorded in
counterparts, each of which shall be deemed an original, and all of which, taken
together, shall constitute one and the same instrument.
3. Except as amended herein, all other provisions of the DA shall remain in full
force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed the day and year first above written.
DEVELOPER:
ESSEX MOORPARK OWNER, LP.
a California limited partnership
By: Essex Moorpark GP, L.P.
a California limited partnership
Its: General Partner
By: Essex Management Corporation
a California corporation
Its: General Partner
By:
Name: ----------Tit I e :
-3-
CITY:
CITY OF MOORPARK,
a municipal corporation
By:~)~
~arZtin, Mayor
ATTEST:
Ky Spang~~
APPROVED AS TO FORM:
By: ~-x~
Kevin G. Ennis, City Attorney
246
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness , accuracy , or
validity of that document.
State of California
County of San Mateo
on December 6, 2022 before me , Sandi Aguayo Cabral, Notary Public
(insert name and title of the officer)
personally appeared _A_d_a_m_B_e_r_ry ______________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted , executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official se I.
(Seal)
247
CITY OF MOORPAR K
79 9 Moorp ark Avenu e, Moorp ark , Californi a 930 21
Main City Phone Number (805) 517 -6200 I Fax (805) 532 -2205 I mo orp ark@moorpark ca .gov
A notary pub li c or other officer complet ing th is certificate verifies only the ident ity of
the ind iv idual who signed the document to which this certificate is attached, and not
the trut hfulness, accuracy, or validity of that document.
PUBLIC AGENCY FORM OF ACKNOWLEDGMENT
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss .
CITY OF MOORPARK )
On this 3rd day of November in the year 202 2 , before me , Ky Spangler, City Clerk of the
City of Moorpark, persona lly appeared Janice S. Parvin, who proved to me on the bas is of
satisfactory evidence to be the person whose name is subscribed to the within instrument and
who is personally known to me to be the person whose name is subscribed to the within
instrument and acknowledged to me tha t she executed the same in her authorized capacity as
the Mayor of the City of Moorpark, and that by her signature on the instrument, acknowledged
to me that the City executed the instrumen t.
I certify under PENALTY OF PER JU RY under the laws of the State of California that the
foregoing paragraph is true and correc t.
Witness my hand and Official Se a l
City Clerk
.J AN ICE S. PA RVI N
May o r
DR. ANTON IO CAS TRO
Cou ncilrn ember
CHRIS ENEGREN
Co uncilmem ber
DAN IEL GROFF
Co u ncilm ember
DA v rn POLLOCK
Counci lm em be r
248
EXHIBIT "A"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
(Replaces Exhibit A to First Amendment)
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34"' WEST 36.75 FEET;
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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.
EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
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250
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
ALSO EXCEPT AS TO A PORTION OF SAID LAND ALL OIL, GAS OR OTHER
HYDROCARBON SUBSTANCES, BUT WITHOUT THE RIGHT TO ENTER UPON THE
SURFACE OR SUBSURFACE THEREOF, WITHIN 500 FEET, MEASURED
VERTICALLY FROM THE PRESENT SURFACE AS RESERVED BY MERI V.
BURKHOLDER, BY DEED RECORDED IN BOOK 1592, PAGE 487 OF OFFICIAL
RECORDS.
ALSO EXCEPT 50% OF A PORTION OF SAID LAND ALL OIL AND MINERAL RIGHTS
IN AND UNDER SAID LAND, AS RESERVED BY WALLY F. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020-275
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EXHIBIT "B"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
"AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT"
(Exhibit D to First Amendment)
(Attached.)
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Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
SPACE ABOVE THIS LINE FOR RECORDER'S USE
AMENDED AND RESTATED AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
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, LP. ("Essex") dated April 17, 2017 which was recorded on
April 17, 2017 as Instrument Number 20170417-00050721-0 1/67 in the Official
Records of Ventura County, California and was assigned to Owner pursuant to that
certain Assignment and Assumption Agreement dated ______ _, 2022
("Assignment Agreement").
RECITALS
A. The City and Essex have entered into a Development Agreement dated
April 17, 2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records
of the County of Ventura on April 17, 2017, which has been amended by a First
Amendment to Development Agreement dated August 2, 2022 recorded on August 4,
2022, as Instrument Number 2022000082017 1/96 pages in the Official Records of
Ventura County , California, and was assigned to the Owner pursuant to the Assignment
Agreement (the "Development Agreement") pursuant to which Owner will construct a
residential development consisting of 200 apartments (198 restricted units and two
unrestricted manager's units) on approximately 10.57 acres (the "Property"), described
more specifically on Exhibit No. 1 attached hereto and incorporated herein by reference,
which is located within the City of Moorpark.
B. General Plan Amendment No. 2004-05 ("GPA 2004-05") Residential
Planned Development Permit No. 2012-02 ("RPO"), and Zone Change No. 2004-04
("ZC") provide for the development of the Property in such manner and the construction
of certain off-site improvements in connection therewith (the "Project"). The GPA, ZC,
RPO and Mitigation Monitoring Program, as amended, are collectively referred to as the
"Project Approvals".
C. The RPO requires that the apartments described on Exhibit No. 2 attached
hereto (located as described on such exhibit) be affordable and available to households
with income that does not exceed specified levels, as described on Exhibit No. 2, for the
Term (as defined in Article 1 below) of this Agreement.
D. The Development Agreement requires that this Affordable Housing
Agreement be executed and recorded concurrently with the closing of the sale of the
Property by Essex to Owner, and that this Affordable Housing Agreement not be
subordinate to any liens (except for property taxes and assessments not yet due).
E. The Owner intends to finance the costs of development of the Project in part
with federal tax credit equity and tax-exempt bond financing, and all of the restricted
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apartment units (i&:, 198 of the 200 units) in the Project will be restricted by a federal tax
credit regulatory agreement; such units being described on Exhibit No. 2 attached hereto
by income level and bedroom count. Two units will be manager's units. Only forty nine
percent (49%) of the units in the project (i.e., the 98 units that are identified/described at
the end of Exhibit No. 2) will also be restricted by this Affordable Housing Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the City and Owner hereby agree as follows:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1 .1
meanings.
Definitions. Capitalized terms used herein shall have the following
"Affordable Rent" shall mean the rent described in Section 2.9, subject to Section
2.10.
"Affordable Units" shall mean the rent-restricted dwelling units for Extremely Low
Income Households, Very Low Income Households and Low Income Households
described at the end of Exhibit 2 to this Affordable Housing Agreement.
"Agreement" shall mean this Revised Amended and Restated Affordable Housing
Agreement.
"City" shall mean the City of Moorpark, California, a municipal corporation.
"County" shall mean Ventura County.
"County Median Income" shall mean the Area Median Income for Ventura County
adjusted by actual household size as published annually by the California Tax Credit
Allocation Committee (CTCAC), or if CTCAC discontinues such publication, then such
reasonable replacement publication as may be selected by City in good faith.
"Density Bonus" shall mean the density bonus granted by the City to Owner in
connection with the Project pursuant to the Project Approvals.
"Development Agreement" shall mean Development Agreement dated April 17,
2017, recorded as Instrument No. 20170417-00050720-0 in the Official Records of the
County of Ventura on April 17, 2017, which has been amended by a First Amendment to
Development Agreement dated August 2, 2022, and recorded as Instrument No.
2022000082017 Pages 1 /96 in the Official Records of the County of Ventura.
"Extremely Low Income" shall mean a household income that does not exceed
thirty percent (30%) of the County Median Income, adjusted for household size
appropriate to the Unit.
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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 RPO 2012-02 consisting of
up to 200 apartments located on the Property, together with structures, improvements,
equipment, fixtures, and other personal property owned by Owner and located on or used
in connection with all such improvements and all functionally related and subordinate
facilities, and all improvements required by the Project Approvals.
"Project Approvals" is defined in Recital B above.
"Property" shall mean that real property in the City of Moorpark, California
described on Exhibit No. 1.
"Stabilization" shall mean the time at which the Project achieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
"Term" shall mean from the date of recordation of this Agreement until the later of:
(i) the date that the Property is no longer zoned for any residential use and cannot be
used for any residential use or purpose as a "non-conforming use" and has no residential
occupancy; or (ii) fifty-five (55) years after the recordation of this Agreement.
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"Units" shall mean residential dwelling units.
"Utility Allowance" shall mean the utility allowance set forth in the chart attached to
this Agreement as Exhibit No. 2 and referred to in Section 2.9.
"Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit.
"Very Low Income Household" means individuals or households qualified on the
basis of a "certification of tenant eligibility" as certified by such individual or household,
who have a gross income which does not exceed Very Low Income, adjusted for
household size.
"Very Low Income Units" means Units rented to Very Low Income Households.
1.2 Rules of Construction.
1.2.1 The words "hereof," "herein," "hereunder," and words of similar
import shall refer to this Agreement as a whole.
1.2.2 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.3 All of the terms and provisions hereof shall be construed to effectuate
the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and the
table of contents appended to copies hereof shall be solely for convenience of reference
and shall not affect the meaning, construction, or effect of the provisions hereof.
1.2.5 In the event the Development Agreement and this Agreement
conflict, the provision more beneficial to the City, as determined by the City Manager,
shall govern.
ARTICLE 2 AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions.
A. The provisions of this Agreement are intended to impose affordability
restrictions and household income restrictions on the Affordable
Units in the Project, as set forth on Exhibit No. 2.
B. Owner will obtain Federal low income housing tax credits and tax-
exempt bonds, and a loan from City (collectively, "Affordable
Housing Financing") to finance the Project, and, although not
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enforceable by the City (which may only enforce this Agreement as
to the Affordable Units restricted by this Agreement), it is
contemplated that such tax credits will necessitate restricting all of
the units at the Project (except manager's units) for rent to Extremely
Low Income Households, Very Low Income Households and Low
Income Households during the periods set forth in the Internal
Revenue Code, as the same may be modified by law applicable to
the low income housing tax credits (the "Compliance Period and
Extend Use Period") and applicable to the tax exempt bonds (the
"Qualified Project Period").
2.2 Agreement to be Recorded; Priority. Owner will cause this Agreement to
be recorded in the Office of the County Recorder of Ventura County, California
concurrently with the closing of the Project Financing, and Owner shall ensure that this
Agreement shall be senior in priority to any lien, encumbrance or other matter of record
except for property taxes and assessments not yet due and existing easements
necessary for the operation of the Project or as otherwise expressly approved in writing
by City. The Owner shall pay all fees and charges in connection with any such
recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to develop
and operate the Project and Property as a multifamily residential rental property and uses
incidental thereto and for no other purposes. Amenities for the Affordable Units shall
include, without limitation, air conditioning/heating, plumbing and electrical fixtures,
garbage disposal, flooring, cabinets, counter tops, trim, built-in dishwasher, clothes
washer and dryer hookups or community laundry, sinks, bathtub, solar and/or 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.&.:, 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.S(h) of the
California Health and Safety Code to be 2 persons for a 1 bedroom unit, 3 persons for a
2 bedroom unit and 4 persons for a 3 bedroom unit.
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2.9.2 Monthly rent charged to Very Low Income households shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance. "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 th is Agreement or contain or require any subordination of provisions of this Agreement.
6.2.2 Owner shall pay and promptly discharge when due, at their cost and
expense, all liens, encumbrances and charges upon their respective interests in the
Project or the Property, or any part thereof or interest therein (except the lien of any
mortgage, deed of trust or other recorded instrument securing any construction or
permanent financing for the Project, which shall, in any event, be junior and subordinate
to this Agreement), provided that the existence of any mechanic's, laborer's,
materialman's, supplier's, or vendor's lien or right thereto shall not constitute a violation
of this Section if payment is not yet due under the contract which is the foundation thereof
and if such contract does not postpone payment for more than forty-five (45) days after
the performance thereof. Owner shall have the right to contest in good faith the validity
of any such lien, encumbrance or charge, provided that within ten (10) days after service
of a stop notice or ninety (90) days after recording of a mechanic's lien, Owner shall
deposit with City a bond or other security reasonably satisfactory to City in such amounts
as City shall reasonably require, but no more than the amount required to release the lien
under California law and provided further that Owner shall thereafter diligently proceed to
cause such lien, encumbrance or charge to be removed and discharged, and shall, in any
event, cause such lien, encumbrance or charge to be removed or discharged not later
than sixty (60) days prior to any foreclosure sale. If Owner shall fail either to remove and
discharge any such lien, encumbrance or charge or to deposit security in accordance with
the preceding sentence, if applicable, then, in addition to any other right or remedy of
City, City may, but shall not be obligated to, discharge the same, without inquiring into the
validity of such lien, encumbrance or charge nor into the existence of any defense or
offset thereto, either by paying the amount claimed to be due, or by procuring the
discharge of such lien, encumbrance or charge by depositing in a court a bond or the
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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:
If to the Owner:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attention: City Manager
Moorpark Casey Road LP
5251 Ericson Way
Arcata, CA 95521
Attn: Chris Dart (cdart@danco-group.com)
Either party may change its address for notices by a written notice given in
accordance with this Section. Notices shall be deemed given on the date of actual
delivery or refusal to accept delivery, as shown on the return receipt (if sent by certified
mail), or one (1) business day after delivery to the messenger service (if sent by overnight
messenger).
7.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner, or the City and any agents,
employees or contractors of the Owner, and the Owner shall at all times be deemed an
independent contractor and shall be wholly responsible for the manner in which it or its
agents, or both, perform the services required of it by the terms of this Agreement for the
operation of the Project. The Owner have and hereby retains the right to exercise full
control of employment, direction, compensation and discharge of all persons assisting in
the performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its employees,
including compliance with Social Security, withholding and all other laws and regulations
governing such matters. The Owner each agrees to be solely responsible for its own acts
and those of its agents and employees.
7.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or equipment,
or the furnishing or the performance of any work or services with respect to the operation
of the Project or the Property.
7.4 [INTENTIONALLY OMITTED]
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7.5 Limitation of Liability.
7.5.1 No member, official, employee, agent or attorney of the City shall be
personally liable to the Owner, or any successor in interest, in the event of any default or
breach by the City or for any amount which may become from the City or successor or on
any City obligation under the terms of this Agreement. No member, official, employee,
attorney, partner or consultant of the Owner shall be personally liable to City in the event
of any default or breach by Owner or for any amount which may become due to City or
its successor, or on any obligations under the terms of this Agreement or Development
Agreement.
7.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any person
or entity, including, but not limited to, City and its successors and assigns, is limited to
their interests in the Project and the Property, and such persons and entities shall look
exclusively thereto, or to such other security as may from time to time be given for the
payment of obligations arising out of this Agreement or any other agreement securing the
obligations of Owner, under this Agreement, (ii) from and after the date of this Agreement,
no deficiency or other personal judgment, nor any order or decree of specific performance
(other than pertaining to this Agreement), shall be rendered against Owner, or their assets
(other than their interests in the Project, and this Agreement), in any action or proceeding
arising out of this Agreement.
7.6 Force Majeure. Whenever a party required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
performance hereunder due to acts of God, pandemics, fire, earthquake, flood, extreme
weather conditions, explosions, war, invasion, insurrection, riot, mob violence, sabotage,
acts of terrorism, vandalism, malicious mischief, inability to procure or general shortage
of labor, equipment, facilities, materials or supplies in the open market, failure of
transportation, strikes, lockouts, actions of labor unions, third party litigation,
condemnation, requisition, governmental restrictions including, without limitation, inability
or delay in obtaining government consents or permits, laws or orders of governmental,
civil, military or naval authorities, or any other cause, whether similar or dissimilar to the
foregoing, not within the party's control, other than lack of or inability to procure monies
to fulfill its commitments or obligations under this Agreement.
7.7 Indemnification of City. Except with respect to claims that arise solely from
negligence, fraud or willful misconduct by the City or its officers, employees or agents,
Owner shall defend, indemnify and hold City harmless from and against any and all
claims, losses, damages, liabilities, costs and expenses arising directly or indirectly from,
or relating directly or indirectly to: (i) any failure by Owner to comply with the terms of this
Agreement; (ii) the construction, maintenance, alteration or operation of the Project; (iii)
any negligence or willful misconduct by Owner or any of their employees, agents,
contractors, licensees, invitees or tenants on the Project or the Property.
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7.8 Rights and Remedies Cumulative. Except as otherwise expressly stated in
this Agreement, the rights and remedies of the parties are cumulative, and the exercise
or failure to exercise one or more of such rights or remedies by either party shall not
preclude the exercise by it, at the same time or different times, of any right or remedy for
the same default or any other default by the other party. No waiver of any default or
breach hereunder shall be implied from any omission to take action on account of such
default if such default persists or is repeated, and no express waiver shall affect any
default other than the default specified in the waiver, and such wavier shall be operative
only for the time and to the extent therein stated. Waivers of any covenant, term, or
condition contained herein shall not be construed as a waiver of any subsequent breach
of the same covenant, term or condition. The consent or approval by the City to or of any
act by the Owner requiring further consent or approval shall not be deemed to waive or
render unnecessary the consent or approval to or of any subsequent similar act. The
exercise of any right, power, or remedy shall in no event constitute a cure or a waiver of
any default under this Agreement, nor shall it invalidate any act done pursuant to notice
of default, or prejudice the City in the exercise of any right, power, or remedy hereunder.
7.9 Enforcement; Waiver. The City may take whatever action at law or in equity
as may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement. No delay or
omission to exercise any right or power accruing upon any default shall impair any such
right or power or shall be construed to be a waiver of such right or power, but any such
right or power may be exercised from time to time and as often as City may deem
expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement, it shall not be necessary to give any notice, other than such notice as may
be herein expressly required or required by law to be given.
7 .10 Severability. If any term, provision, covenant or condition of this Agreement
is held in a final disposition by a court of competent jurisdiction to be invalid, void or
unenforceable, the remaining provisions shall continue in full force and effect unless the
rights and obligations of the parties have been materially altered or abridged by such
invalidation, voiding or unenforceability.
7.11 Legal Actions. In the event any legal action is commenced to interpret or to
enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
7.12 Binding Upon Successors; Assignment by City. This Agreement, and the
exhibits attached hereto, shall run with the land and be binding upon and inure to the
benefit of the successors and assigns of each of the parties, and successors in interest
to the Project or any portion thereof or interest therein. Any reference in this Agreement
to Owner shall be deemed to apply to any successor or assign or successor-in-interest of
such party who has acquired any portion of or interest in the Project. Without limiting the
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foregoing, City may assign this Agreement to the Area Housing Authority of the County
of Ventura or any other housing authority created by City or in which City is a member.
7 .13 Binding Effect; Successors and Assigns. Owner covenants and agrees for
itself, and its successors and assigns and every successor in interest to any portion of or
interest in the Project that it and its successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement. This Agreement is intended to bind the
Project and Property "run with the land".
7 .14 Transfers. Owner shall provide the City with at least thirty (30) days' prior
written notice of any sale or transfer of the Project or the Property or any portion thereof.
The Affordable Units shall at all times remain owned by a single entity. Written notice shall
be given to the City of any transfer, but no consent of the City shall be required for any
transfer of Affordable Units to an entity of which Danco Homes or any affiliate thereof,
that directly or indirectly, owns and controls, or partially owns but controls the entity to
which the transfer will be made, provided that the City is given a copy of the Assignment
and Assumption Agreement and organizational documents that prove the entity is such
an affiliate of Danco Homes and has such ownership and control.
7.15 Time of the Essence. In all matters under this Agreement, time is of the
essence.
7.16 Complete Understanding of the Parties. The Project Approvals and this
Agreement constitute the entire understanding and agreement of the parties with respect
to the matters described herein and therein.
7.17 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties and
has been the subject of arm's length and careful negotiation over a considerable period
of time, that each party has reviewed this Agreement with legal counsel, and that each
party has the requisite experience and sophistication to understand, interpret and agree
to the particular language of the provisions of this Agreement. Accordingly, in the event
of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
7.18 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of California,
without regard to conflict of law provisions, except to the extent federal law applies. Venue
for any action brought under this Agreement will be in the Superior Court for the County
of Ventura, California or in the United States District Court for the Central District of
California. Owner hereby accepts for itself and in respect to its property, generally and
unconditionally, the non-exclusive jurisdiction of the foregoing courts. Owner irrevocably
consents to the service of process in any action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to Owner at its address for notices
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pursuant to this Agreement. Nothing contained herein shall affect the right of the City to
serve process in any other manner permitted by law.
7 .19 Hazardous Materials.
7.19.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
(a) "Hazardous Materials" shall mean:
(1) any "hazardous substance" as defined in Section 101(14) of
CERCLA (42 U.S.C. Section 9601 (14)) or Section 25281 (d) or 25316 of the
California Health and Safety Code at such time;
(2) any "hazardous water," "infectious waste" or "hazardous
material" as defined in Section 25117, 25117.5 or 25501 U) of the California
Health and Safety Code at such time;
(3) any other waste, substance or material designated or
regulated in any way as "toxic" or "hazardous" in the RCRA (42 U.S.C.
Section 6901 et seq.), CERCLA Federal Water Pollution Control Act (33
U.S.C. Section 1521 et seq.), Safe Drinking Water Act (42 U.S.C. Section
3000 (f) et seq.), Clean Air Act (42 U.S.C. Section 7401 et seq.), California
Health and Safety Code (Section 25100 et seq., Section 3900 et seq.), or
California Water Code (Section 1300 et seq.) at such time; and
(4) Any additional wastes, substances or material which at such
time are classified, considered or regulated as hazardous or toxic under any
other present or future environmental or other similar laws relating to the
Project or the Property.
(b) "Hazardous Materials Laws" means all federal, state, and local laws,
ordinances, regulations, orders and directives pertaining to Hazardous Materials,
in, on or under the Project, the Property of any portion thereof.
7.19.2 Certain Hazardous Materials Covenants and Agreements. The
Owner hereby agrees that:
(a) Neither shall knowingly permit the Project, the Property or any
portion thereof to be a site for the use, generation, treatment, manufacture, storage,
disposal or transportation of Hazardous Materials or otherwise knowingly permit the
presence of Hazardous Materials in, on or under the Project or the Property. For the
purposes of this Section only, the term "Hazardous Materials" shall not include: (1)
construction materials, gardening materials, household products, office supply products,
or janitorial supply products customarily used in the construction, ownership, operation,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which may
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contain chemicals listed by the State of California pursuant to Health and Safety Code
Section 25249.8 et seq., which substances are commonly used by a significant portion of
the population living within the region of the Project, including (without limitation) alcoholic
beverages, aspirin, tobacco products, and saccharine.
(b) Each shall keep and maintain its interest in Project and the
Property and each portion thereof in compliance with, and shall not cause or permit its
interest in the Project, the Property or any portion thereof to be in violation of, any
Hazardous Materials Laws.
(c) Upon receiving actual knowledge of the same, the Owner or
shall immediately advise the City in writing of: (1) any and all enforcement, cleanup,
removal or other governmental or regulatory actions instituted, completed or threatened
against the Owner or the Project or the Property pursuant to any applicable Hazardous
Materials Laws; (2) any and all claims made or threatened by any third party against the
Owner or the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set forth
in the foregoing clause (1) and this clause (2) are hereinafter referred to as "Hazardous
Materials Claims"); (3) the presence of any Hazardous Materials in, on or under the
Project or the Property; or (4) the Owner's discovery of any occurrence or condition on
any real property adjoining or in the vicinity of the Project classified as "borderzone
property" under the provisions of California Health and Safety Code, Section 25220 et
seq., or any regulation adopted in accordance therewith, or to be otherwise subject to any
restrictions on the ownership, occupancy, transferability or use of the Project or the
Property under any Hazardous Materials Laws.
7.19.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Council members, officers, employees, contractors, agents and attorneys from and
against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of (1)
the failure of the Owner, as applicable, or any other person or entity occupying or present
on their respective interest in the Project or Property, to comply with any Hazardous
Materials Law relating in any way whatsoever to the handling, treatment, presence,
removal, storage, decontamination, cleanup, transportation or disposal of Hazardous
Materials into, on, under or from the Project or the Property; (2) the presence in, on or
under its interest in the Project or the Property of any Hazardous Materials or any releases
or discharges of any Hazardous Materials into, on, under or from its interest in the Project
or the Property; or (3) any activity carried on or undertaken on its interest in the Project
or the Property during its ownership thereof, whether by the Owner or any employees,
agents, contractors or subcontractors, or any third persons at any time occupying or
present on the Project or the Property, in connection with the handling, treatment,
'removal, storage, decontamination, cleanup, transport or disposal of any Hazardous
Materials at any time located or present on or under the Project or the Property. The
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foregoing indemnity shall further apply to any residual contamination on or under the
Project or the Property, or affecting any natural resources, and to any contamination of
any property or natural resources arising in connection with the generation, use, handling,
treatment, storage, transport or disposal of any such Hazardous Materials on, under, or
from the Project or the Property, and irrespective of whether any of such activities were
or will be undertaken in accordance with Hazardous Materials Laws. However, the
foregoing indemnity shall not extend to the portion of any Loss arising from the gross
negligence, fraud or willful misconduct of the City or anyone for whose actions the City is
legally liable. This Section shall survive termination of this Agreement.
7 .19 .4 No Limitation. Owner hereby acknowledge and agree that their
duties, obligations and liabilities under this Agreement are in no way limited or otherwise
affected by any information the City may have concerning the Project or the Property
and/or the presence within the Project or the Property of any Hazardous Materials,
whether the City obtained such information from Owner or from its own investigations.
7.20 Insurance Requirements.
7.20.1 Required Coverage. Owner shall maintain and keep in force, at their
sole cost and expense, the following insurance for their respective interests in the Project,
provided, however, that a Contractor's liability policy may be used during construction
provided it complies with all terms and conditions of this Section:
(a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for bodily
injury and property damage, including coverages for contractual liability, personal injury,
broad form property damage, products and completed operations. Beginning on the fifth
anniversary date of the recordation of this Agreement, and thereafter every five (5) years,
the policy limits shall be increased by ten percent (10%) of the then-current limit.
(b) Comprehensive automobile liability insurance with limits not
less than $2,000,000 for each occurrence, combined single limit for bodily injury and
property damage, including coverages for owned, non-owned and hired vehicles.
Beginning on the fifth anniversary date of the recordation of this Agreement, and
thereafter every five (5) years, the policy limits shall be increased by ten percent (10%)
of the then-current limit.
(c) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind and
sized apartment projects within the City.
(d) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies. In
addition, if Owner carries coverage voluntarily for additional causes (such as earthquake,
riot, civil commotion or other), such coverage shall be treated in all respects as the policy
or policies required to be kept under this paragraph (d) for so long as it continues to
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voluntarily carry such coverage. All insurance hereunder, except earthquake insurance,
shall be maintained in an amount not less than one hundred percent (100%) of the Full
Insurable Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the actual replacement cost
excluding the cost of excavation, foundation and footings below the ground level of the
Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is written
on a "replacement cost" basis.
7.20.2 General Requirements. The insurance required by this Section shall
be provided under an occurrence form, and Owner shall maintain such coverage
continuously so long as this Agreement is in force. Should any of the required insurance
be provided under a form of coverage that includes an annual aggregate limit or provides
that claims investigation or legal defense costs be included in such annual aggregate
limit, such annual aggregate limit shall be one and one-half times the occurrence limits
specified above. All policies shall be with an insurance carrier licensed and admitted to
do business in California and rated in Best's Insurance Guide, or any successor thereto
(or if there be none, an organization having a national reputation) as having a "Best's
Rating" of "A" and a "Financial Size Category" of at least "VII" or if such ratings are not
then in effect, the equivalent thereof.
7.20.3 Additional Insured. The City shall be named as an additional insured
on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Manager or his/her designee. Comprehensive
general liability policies shall also be endorsed to name as additional insureds the City,
and its City Council members, officers, agents and employees. All policies shall be
endorsed to provide thirty (30) days prior written notice of cancellation, reduction in
coverage, or intent not to renew to the address established for notices to the City pursuant
to Section 7 .1 of this Agreement.
7.20.4 Certificates of Insurance. Upon the City's request at any time during
the Term of this Agreement, Owner shall provide certificates of insurance, in form and
with insurers reasonably acceptable to the City, evidencing compliance with the
requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Manager or his/her
designee, as indicated in Section 7.20.3, naming the City as an additional insured.
7.21 Burden and Benefit. City and Owner hereby declare their understanding
and intent of the burden of the covenants set forth herein touching and concerning the
Project and the Property.
7.22 Amendments. Changes and modifications to this Agreement shall be made
only upon the written mutual consent of the Parties. However, no changes shall be made
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to this Agreement which would adversely affect any bonds issued under this Project
without the written consent of all appropriate parties with respect to any bond issuance.
7.23 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
Owner and their respective successors and assigns.
7.24 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
7.25 Assessment Districts; Covenant and Waivers. Owner agrees to cast
affirmative ballots for the increase of any assessment for existing assessment districts for
the maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such purposes,
in order to supplement then-existing assessments upon properties within the Project.
Owner hereby waives any right they or either of them may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the funds that the
assessment district requires to the assessment district within five (5) business days after
written demand from the assessment district from time to time.
ARTICLE 8 INCORPORATION OF CERTAIN DEVELOPMENT AGREEMENT
PROVISIONS
The term of the Development Agreement is for seven (7) years, while the term of
this Agreement is much longer (as described in the definition of "Term" in Section 1.1
above). The following provisions of the Development Agreement are hereby incorporated
herein to clarify that they survive the expiration of the Development Agreement (but,
except for Sections 8.1, 8.4 and 8.7, such provisions will not survive any earlier
termination of the Development Agreement due to a default by the "Developer"
thereunder) and continue until the expiration (or earlier termination) of this Agreement, it
being understood that all of the rights and benefits of Owner under the following (except
for obligations thereunder arising prior to termination and Sections 8.1, 8.4 and 8.7) shall
terminate upon any early termination of the Development Agreement due to a default by
Owner thereunder.
8.1 No Other Separate Conveyance of Affordable Units. Owner and its
successors in interest shall not convey any unit or any portion of the Project separately,
but shall only convey them the entire Project concurrently and to the same purchaser,
and then only to a purchaser reasonably approved in writing by City (which will consider
the reputation and experience of the purchaser in owning and operating affordable rental
units).
8.2 Development of the Property. The following provisions shall govern the
subdivision, development and use of the Property.
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8.2.1 Permitted Uses. The permitted and conditionally permitted uses of
the Property shall be limited to those that are allowed by the Project Approvals and the
Development Agreement.
8.2.2 Development Standards. All design and development standards,
including but not limited to density or intensity of use and maximum height and size of
buildings, that shall be applicable to the Property are set forth in the Project Approvals
and the Development Agreement.
8.2.3 Building Standards. All construction on the Property shall adhere to
all City building codes in effect at the time the plan check or permit is approved per Title
15 of the Moorpark Municipal Code and to any federal or state building requirements that
are then in effect (collectively "the Building Codes").
8.2.4 Reservations and Dedications. All reservations and dedications of
land for public purposes that are applicable to the Property are set forth in the Project
Approvals and the Development Agreement.
8.3 Densities Allowed for Development. Owner agrees that densities vested
and incentives and concessions received in the Project Approvals include all densities
available as density bonuses and all incentives and concessions to which Developer is
entitled under the Moorpark Municipal Code, Government Code Sections 65915 through
65917 .5 or both Owner shall not be entitled to further density bonuses or incentives or
concessions and further agrees that its execution of and compliance with this Agreement
is in consideration for the density bonus obtained through the Project Approvals that is
greater than would otherwise be available. Residential Planned Development Permit No.
2012-02, including the special conditions that incorporate and include all of the
requirements set forth in this Agreement are part of the Project conditions of approval and
not merely contractual in nature.
8.4 Assessment Districts. Prior to issuance of a Zoning Clearance for the first
building permit or the approval of any final map for the Project: (a) Owner shall pay the
City a single Five Thousand Dollar ($5,000) Assessment District Formation Fee; and (b)
either two Assessment Districts (one fully funded and a second "back-up" district) or one
Assessment District containing two zones (one zone to be fully funded and the other to
be a back up zone), as determined by the City at the City's discretion, shall be formed
that includes the Property. The first District out of the two Districts or the first zone of the
one District, whichever is applicable, shall be for the purposes of funding future costs for
the maintenance landscaping and irrigation of the landscaped area above the retaining
wall along the southern perimeter of the Property and the maintenance of the storm water
quality basin and drainage improvements, including basin landscaping and irrigation. The
second District or second zone of the District, whichever is applicable, shall be for the
maintenance of parkway landscaping on Casey Road and Walnut Canyon Road and
Project slopes adjacent to the Walnut Canyon School, the maintenance of the storm water
basin access drive and the emergency access drive. It shall be the intent of the City to
approve the required assessment each year, but to only levy that portion of the
assessment necessary to recover any past City costs or any anticipated City costs for the
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that fiscal year. The City shall administer the annual renewal of the Assessment District
or Districts, and any costs related to such administration shall be charged to the fund
established for such Assessment District revenues and expenses. Owner agrees to cast
affirmative ballots for the establishment of both Assessment Districts, or both zones of
the one District, as applicable, and for annual increases in the assessments thereunder,
for the purposes specified in this subsection. Owner hereby waives any right they may
have to contest or protest any such assessments or assessment increases. In the event
that any such Assessment District has insufficient funds for its purposes, then Owner shall
pay the funds required to the Assessment District within five (5) business days after
written demand from the Assessment District from time to time. Owner also agrees to
add this language to any Regulatory Agreement as part of the sale of any bonds issued
by the City for the Project.
8.5 Fee Protest Waiver. Owner agrees that any fees and payments pursuant to
the Development Agreement, this Agreement and for RPO 2012-02 shall be made without
reservation, and Developer expressly waives the right to payment of any such fees under
protest pursuant to California Government Code Section 66020 and statutes amendatory
or supplementary thereto.
8.6 Required Tenant and Guest Parking. Owner agrees to provide a total of at
least 2.00 parking spaces per unit on site. Two parking spaces shall be designated and
reserved for each of the 2-bedroom and 3-bedroom units, and one space shall be
designated and reserved for each of the 1-bedroom units, with the remainder of the
spaces available for guest parking. At least one of the parking spaces designated and
reserved for each of the units shall be in a garage or covered carport. There shall be no
extra charges for required parking for any units (whether or not they are Affordable Units).
Owner shall only be required to provide ninety-four (94) guest parking spaces.
8.7 City Ability to Modify. Owner acknowledges the City's ability to modify the
development standards and to change the General Plan designation and zoning of the
Property upon the termination or expiration of the Development Agreement (if the Project
has not been built), and Developer hereby waives any rights they might otherwise have
to seek judicial review of such City actions to change the development standards, General
Plan designation and zoning to those development standards and density of permitted
development to that in existence prior to the approval of General Plan Amendment No.
2004-05 ("GPA 2004-05") and Zone Change No. 2004-04 ("ZC 2004-04").
8.8 Indemnity. Owner will defend, indemnify and hold City harmless from and
against any and all claims, liabilities, losses, damages, costs and expenses arising from
any activity by Owner or the contractors of either of them, except to the extent caused by
the negligence or willful misconduct of the City.
8.9 Storm Water/Flood Detention Basin. City agrees that Owner may use the
storm water/flood detention basin located on the City Property and depicted on Exhibit
No. 5 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: ----------
Tit I e: -------------
OWNER:
MOORPARK CASEY ROAD LP,
a California limited partnership
By: Moorpark Casey Road LLC,
a California limited liability company,
its Administrative General Partner
By: Danco Communities,
a California corporation,
its Manager
By: ---------
Daniel Johnson
President
By: Community Revitalization and
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Development Corporation, a
California nonprofit public benefit
corporation, its Managing General
Partner
By:
David Rutledge
President
283
A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of
that document.
State of California
County of Ventura
On ____________ , before me, ___________ _
(insert name and title of the officer)
Notary Public, personally appeared ___________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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A notary public or other officer completing this certificate verifies only the identity of the individual who
signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity
of that document.
State of California
County of Ventura
On , before me, -------------------------(insert name and title of the officer)
Notary Public, personally appeared ___________________ ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
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EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OF OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
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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. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OF OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1 ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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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. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020-275
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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
apartmenUwalk-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.
Name of Members
Of the
Household
Income Computation
2.
Relationship
to Head of
Household
3.
Age
4.
Social Security
Number
5.
Place of
Employment
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
for a unit is $ _________ 1
If this form is being completed m accordance with recertification of an Extremely Low Income Tenant's or Very Low Income Tenant's
or a Low Income Tenant's occupancy ofan Extremely I .ow Income l/rnt or a Very I.ow Income IJrnt or a I .ow Income UniC rcspectively,
this form must he completed based upon the current mcomc of the occupants
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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;
B-41
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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;
B-42
293
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including training
programs not affiliated with a local government) and training of a family member as
resident management staff. Amounts excluded by this provision must be received under
employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
(i) temporary, nonrecurring or sporadic income (including gifts);
G) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full-term student 18 years old or older
(excluding the head of household and spouse);
(I) adoption assistance payments in excess of $480 per adopted child; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and equipment
needed to keep the developmentally disabled family member at home; or
(p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth in
24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No;or ----------
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Yes No ----------
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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
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INCOME CALCULATION WORKSHEET
Include all household income for all persons over 18 years of age. Written verification of all income must be included.
Gross Net 1099 Public Social Pension Unemploy Military Alimony Family
Applicant Wages Income Income Assistance Security ment Pay and/or Supp.
& Salaries* from 1040 disability or Child (regular gift
(YTD as of: (self workers Support from
) employed) com pen sat person not
ion pay living in
unit)
1
2
3
4
~TOTAL INCOME l $
*Includes overtime pay, commissions, fees, tips, and bonuses. Does not include amounts received as reimbursements of medical costs or insurance
payments.
ASSET CALCULATION
All income earned on assets in excess of $5,000 must be included as household income. Written verification must be included. If written verification
is not available for savings, the current passbook savings rate as determined by HUD may be used.
Real Property*
Stocks
Other**
$ _________ _
$ _________ _
$ _________ _
[]ID TOTAL ASSET INCOME
Savings
Bonds
l $
$ __________ _
$ _________ _
*Includes rental income or equity if not rented only. Equity is the difference between the market value of the property and the total dollar amount of
any loans secured by the property.
**Does not include the personal property i.e., furniture or automobiles.
I TOTAL HOUSEHOLD INCOME (A+ B) ]$
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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
Overtime
Bonuses
Commissions
Wages
Current Base Pay
(Gross) Other Income
Avg. Total Hours
Worked Weekly
Total Current Income --------
Year-to-Date Income --------
I Pay Period: [ ] Weekly I [ ] Bi-weekly I [ ] Monthly I [ ] Other
Do you anticipate an increase in the base pay over the next 12 months? □ Yes □ No
If so, please indicate the amount of anticipated increase$ _____ per ____ start
date: ----
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
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APPLICANT
hereby grant you perm1ss1on to disclose my income to
_______________ in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed under
the Multifamily Revenue Bond Program.
Date
Print Name (Resident)
Please send to:
(Management Co.
or Owner)
12853-0092\2729176v7.doc
Signature (Resident)
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300
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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301
INCOME VERIFICATION
(for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
_____________ Multifamily Housing Program for persons of very low
income: Every income statement of a prospective tenant must be stringently verified. In
connection with my application for a rental unit, I hereby authorize the Department of
Social Services to release to ___________________ the
specific information requested below:
Date: ------------------------------
Signature: ___________________________ _
Social Security No.: _________ _
Name (Print): ____________ _
Address(Print) _________________________ _
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
$ ________________ _
Other Benefit(s): ________ _ Amount:$ -----------
Medicare Deductions: $ ------------
Are benefits expected to change? [ ] Yes [ ] No
If yes, please state date and amount:
Date: ___________ of change
Amount$ ---------
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If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
Reason:
Date of Resumption: _____ _
Amount: -----------------
Date:
Signature:
Title:
Please send form to:
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INCOME VERIFICATION
(for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through your office. I have applied for a rental unit
located in project financed under the _______________ Multifamily
Housing Program for persons of very low income. Every income statement of a
prospective tenant must be stringently verified. In connection with my application for a
rental unit, I hereby authorize the Department of Social Services to release to
______________ the specific information requested below:
Date: -----------------------------
Signature: ___________________________ _
Caseload Number: -----------
Name (Print): ___________ _
Case Number:
Case Worker: ------------
1. Number of persons included in budget: ___________ _
2. Total monthly budget$ ________________ _
(a) Amount of grant $ _______ _
(b) Date aid last began: ________ _
(c)Other income and source: _________________ _
(d) Is other income included in total budget? □ Yes □ No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.): ___ _
4. If recipient is not receiving full grant, please indicate reason:
[ ] Overpayment due to client's failure to report other income
[ ] Computation error
[
Other: ---------------------------
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Date when full grant will resume: ____________________ _
Date: ---------------
Case Worker's Signature: _________ _
Telephone: ------------
District Office: --------------
Your very early response will be appreciated.
Please return form to:
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DECLARATION OF NO INCOME
As managing agents for _____________________ _
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence and
used only for the purpose of establishing eligibility.
CERTIFICATION
Name of Management Company
By:
Name and Title
I, _____________ , do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from any
source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
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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.
Tvoe of Benefit Amount Freauencv
[ ] Child Support ( ) weekly ( ) monthly ( ) yearly
[ ] Family Support ( ) weekly ( ) monthly ( ) yearly
[ ] Alimony ( ) weekly ( ) monthly ( ) yearly
[ ] Other ( ) weekly ( ) monthly ( ) yearly
(Please list type)
Are monies paid to offset an AFDC grant? [ ] Yes [ No
Do you anticipate any changes in the next 12 months? [ ] Yes [ ] No
Comments: ---------------------------
Signature of Source: _____________ _
SSN#: ---------
Date Completed Form: ____________ _
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EXHIBIT NO. 4
TO AFFORDABLE HOUSING AGREEMENT
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING __ _
The undersigned, ____________ , as the authorized
representative of ___________ (the "Owner"), has read and is
thoroughly familiar with the provisions of the Affordable Housing Agreement by and
between Danco Communites ("Developer") and the City of the City of Moorpark (the
"City"), dated as of _________ , 20_
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held 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: __________ _
____________________ .]
B-59
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EXHIBIT NO. 5
TO AFFORDABLE HOUSING AGREEMENT
LOCATION OF STORM/WATER DETENTION BASIN ON CITY PROPERTY
(Attached.)
B-60
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311
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' ' ' ' : I ,
'i1,' :t.
B-61
1111 : 1~ ' . .
' ~
312
EXHIBIT "C"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
(Exhibit F of First Amendment)
Design Phase: Complete on or before December 31, 2021
Tax-Exempt Bond and Tax Credit Applications: March 16, 2022
Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022
Plan Check/Building Permits: December 31, 2022
Date property must be acquired by Affordable Housing Owner: December 31, 2022
Evidence to City of all debt/equity funds for all Project costs (with comprehensive Project
budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing:
December 31, 2022
Grading: To commence within 30 days after acquisition of property by Affordable Housing
Owner or affiliate
Construction: 24 months from commencement of grading
Lease-Up: approximately 3 months following construction completion.
C-1
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313
EXHIBIT "D"
TO SECOND AMENDMENT TO DEVELOPMENT AGREEMENT
FORM OF OFFSITE IMPROVEMENT PERFORMANCE AND PAYMENT BONDS
(Exhibit K of First Amendment)
(Attached.)
D-1
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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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315
made evident during the period of one (1) year(s) from the date of completion of the work,
and resulting from or caused by defective materials or faulty workmanship, the above
obligation in penal sum thereof shall remain in full force and effect. The obligation of
SURETY hereunder shall continue so long as any obligation of PRINCIPAL remains.
Whenever PRINCIPAL shall be, and is declared by the CITY to be, in default
under the contract, the CITY having performed the CITY's obligations thereunder, the
SURETY shall promptly remedy the default in a manner mutually agreeable to both CITY
and SURETY:
1. SURETY's takeover of the performance obligations to complete the
contract by entering into an agreement with a completion contractor with terms and
conditions consistent with the original contract between CITY and PRINCIPAL; or
2. SURETY shall obtain a bid or bids for completing the contract in
accordance with its terms and conditions, and upon determination by SURETY of the
lowest responsive and responsible bidder, prepare a contract between such bidder and
the CITY (to the CITY's satisfaction), and make available as work progresses sufficient
funds to pay the cost of completion less the balance of the contract price, but not
exceeding, including other costs and damages for which SURETY may be liable
hereunder, the Penal Sum.
The term "balance of the contract price" as used in this paragraph shall
mean the total amount payable to PRINCIPAL by the CITY under the contract and any
modifications thereto, less the amount previously properly paid by the CITY to the
PRINCIPAL.
SURETY expressly agrees that the CITY may reject any contractor or
subcontractor, which may be proposed by SURETY in fulfillment of its obligations in the
event of default by PRINCIPAL. SURETY shall not utilize PRINCIPAL in completing the
contract nor shall SURETY accept a bid from PRINCIPAL for completion of the work if
the CITY, when declaring the PRINCIPAL in default, notifies SURETY of the CITY's
objection to PRINCIPAL's further participation in the completion of the work.
No right of action shall accrue on this bond to or for the use of any person
or corporation other than the CITY named herein or the successors or assigns of the
CITY.
The prevailing party on any dispute (whether legal, equitable, or otherwise)
regarding the interpretation, enforcement, and respective rights and obligations under this
Performance Bond shall be entitled to recovery of reasonable attorneys' fees and costs
(including but not limited to consultant's and/or expert fees and costs).
As part of the obligation secured hereby, and in addition to the face amount
specified therefor, there shall be included costs and reasonable expenses and fees,
including reasonable attorneys' fees, incurred by CITY in successfully enforcing such
obligation, all to be taxed as costs and included in any judgment rendered.
0-3
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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
D-4
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317
CERTIFICATE OF ACKNOWLEDGMENT OF NOTARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Ventura
On ____________ , before me, ___________ _
(insert name and title of the officer)
Notary Public, personally appeared __________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
D-5
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318
CERTIFICATE AS TO CORPORATE PRINCIPAL
------------------, certify that I am the Secretary of the
corporation named as principal in the attached bond, that who signed the said bond
on behalf of the principal was then of said corporation; that I know his signature,
and his signature thereto is genuine; and that said bond was duly signed, sealed and
attested for and in behalf of said corporation by authority of its governing Board.
(Corporate Seal)
Signature: _____ _
Date: --------
NOTE: A copy of the power of attorney to local representatives of the bonding company
may be attached hereto.
0-6
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319
BOND NO.
INITIAL PREMIUM: ---
SUBJECT TO RENEWAL
LABOR & MATERIAL BOND
WHEREAS, the City of Moorpark ("CITY") has executed an agreement with
Essex Moorpark Owner, L.P. (hereinafter "PRINCIPAL"), requiring PRINCIPAL to: (i)
perform certain work consisting of, but not limited to, furnishing all labor, materials, tools,
equipment, services, and incidentals for the relocation of electrical transmission lines
(hereinafter the "Work") and (ii) paying the CITY $400,000 in connection with that Work
("Payment");
WHEREAS, the Work and Payment to be performed or made by
PRINCIPAL is more particularly set forth in that certain Second Amendment to the
Development Agreement dated ____ , 2022 (hereinafter the "Agreement"); and
WHEREAS, PRINCIPAL or its contractor is required to furnish a bond in
connection with the Agreement providing that if _____ or any of his or its
contractors shall fail to pay for any materials, provisions, or other supplies, or terms used
in, upon, for or about the performance of the Work contracted to be done, or for any work
or labor done thereon of any kind, or for amounts due under the provisions of Title 3
(Commencing with Section 9000) of Part 6 of Division 4 of the Civil Code, with respect to
such work or labor, that the SURETY on this bond will pay the same together with a
reasonable attorney's fee in case suit is brought on the bond.
NOW, THEREFORE, we the undersigned, as
PRINCIPAL and ________ , a corporation organized and existing under the
laws of the State of ________ and duly authorized to transact business under
the laws of the State of California, as SURETY, are held and firmly bound unto the CITY
and to any and all material men, persons, companies or corporations furnishing materials,
provisions, and other supplies used in, upon, for or about the performance of the said
Work, and all persons, companies or corporations renting or hiring teams, or implements
or machinery, for or contributing to said Work to be done, and all persons performing work
or labor upon the same and all persons supplying both work and materials as aforesaid,
the sum of ($ _____ ~, said sum being not less than 100% of the total amount
payable by _____ under the terms of the Agreement, for which payment well and
truly to be made, we bind ourselves, our heirs, executors and administrators, successors
and assigns jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION IS SUCH that if ____ or
its contractors, or their heirs, executors, administrators, successors, or assigns, shall fail
to pay for any materials, provisions, or other supplies or machinery used in, upon, for or
about the performance of the Work contracted to be done, or for work or labor thereon of
any kind, or fail to pay any of the persons named in California Civil Code Section 9100,
or amounts due under the Unemployment Insurance Code with respect to work or labor
performed by any such claimant, or for any amounts required to be deducted, withheld,
and paid over to the Employment Development Department from the wages of employees
D-7
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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
D-8
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321
CERTIFICATE OF ACKNOWLEDGMENT OF NOT ARY PUBLIC
A Notary Public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
State of California
County of Riverside
On , before me, -------------------------(insert name and title of the officer)
Notary Public, personally appeared __________________ _
who proved to me on the basis of satisfactory evidence to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _____________ _ (Seal)
0-9
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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.
D-10
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Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to §§ 6103, 27383 and 27388.1
of the California Government Code
2023000025399
Recorded in Official Records
Ventura County Clerk-Recorder
Michelle Ascencion
04/07/2023
01 :04 PM
VEN
VARELG
Titles: 1 Pages: 9
Fees: $0.00
1111 ~~l·~l~~t~~~till 111
THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
ESSEX MOORPARK OWNER, LP.
12853-0092\2770 I46vl .doc
ATTACHMENT 4
324
THIRD AMENDMENT
TO DEVELOPMENT AGREEMENT
This THIRD AMENDMENT TO DEVELOPMENT AGREEMENT ("Third
Amendment") is dated as of tpf\· I 6 , 2023, and is entered into by and between the
CITY OF MOORPARK, a municipal corporation ("City"), and ESSEX MOORPARK
OWNER, L.P ., a California limited partnership ("Developer").
RECITALS
WHEREAS, the City and Developer entered into that certain Development
Agreement dated April 17 , 2017, which was recorded on April 17 , 2017 as Document No .
20170417 -00050720-0 in the Official Records of Ventura County , California, and
amended it by a First Amendment of Development Agreement ("First Amendment") dated
August 2, 2022 which was recorded on August 4 , 2022 as Document No . 2022-
000082017 in such Official Records , and as further amended by a Second Amendment
of Development Agreement ("Second Amendment") dated December 2, 2022 which was
recorded on December 14 , 2022 as Document No . 2022000115909 in such Official
Records (as amended , the "DA"); and
WHEREAS, Developer is the owner of real property within the City, more
specifically described in Exhibit "A" attached hereto (referred to hereinafter as the
Property"); and
WHEREAS, City and Developer desire to amend the DA to extend the date for
satisfying certain conditions as set forth herein.
NOW, THEREFORE, the parties hereby agree as follows :
1. Amendments .
a. Section 2 of the Second Amendment is hereby amended to extend the
December 31, 2022 date set forth therein to June 30 , 2023 ; and
b. Exhibit "C" to the Second Amendment is hereby deleted and replaced in
its entirety with Exhibit "B" to this Third Amendment.
2 . Reaffirmation . Except as specifically amended hereby , the DA is and shall
remain in full force and effect; and to the extent that there are any
inconsistencies between the provisions of this Third Amendment and the DA ,
the provisions hereof shall control.
3 . Counterparts . This Third Amendment may be executed by the parties hereto
in separate counterparts , and signatures delivered electronically , and each
counterpart when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same in strument.
1-
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325
IN WITNESS WHEREOF , the parties hereto have caused this Amendment to be
executed the day and year first above written .
DEVELOPER:
ESSEX MOORPARK OWNER, L.P.
a California limited partnership
By: Essex Moorpark GP, L.P.
a California limited partnership
Its : General Partner
By : t Corporation
a California co or tion
Its : Gener Pa ner
By :
Nam \--'-'!..!.!....l~L.:....>!l,il..L.l...>oia.!"""'--"---
Title :
2 -
12853-0092\2770 146v I .doc
CITY:
CITY OF MOORPARK,
a municipal corporation
By :
ATTEST:
KySpan~~
APPROVED AS TO FORM :
By : ;;;~-1£~
Kevin G . Ennis, City Attorney
326
A Notary Public or other officer completing this certificate verifie s 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 ,)Ar: h..Aii v
On __ 1-=-+-/&-"--+-/~-b-~~J ____ , before me, -J"'.r--J.,._,~ A..,,1/\.-<.:::J i'> {4o,,I,
A (
insert name and ~of the offi cer)
Notary Public , personally appeared hr\L:: N'.Y rr ;@D-,
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 th e person(s), or the entity upon behalf of
which the person(s) acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California
that the foregoing paragraph is true and correct.
WITNESS my hand
SANDI AG/JAYO CABRAL -a:• Notary Public · Califo r ni a
i t ? San Ma teo Cou nty f
Commissi on f 23 1900 5 -
My Com m. Ex pires Fob 9, 2024
Seal)
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327
CITY OF MOORPARK
799 Moorpark Avenue , Moorpark California 93021 I Phone (805) 517 -6200 I Fax (805) 532 -2205
A notary public or other officer completing this certificate verifies only the identity of
the individual who 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 5th day of April in the year 2023, before me, Ky Spangler, City Clerk
of the City of Moorpark, personally appeared Chris R. Enegren, 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 he
executed the same in his authorized capacity as the Mayor of the City of Moorpark,
and that by his signature on the instrument, acknowledged to me that the City of
Moorpark executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of
California that the foregoing paragraph is true and correct.
Witness my hand and Official Seal .
City Clerk
CHRIS R. ENEG RE N
M ayo r
RENEE DELGADO
Councilmember
DAN IEL GROF F
Councilmember
TOM MEANS
Councilmemb er
DR. ANTON IO CAS TRO
Coun ci lmember
328
EXHIBIT "A"
TO THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 28 OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI
AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
A-1
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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. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE OR SUBSURFACE ENTRY UPON SAID LAND WITHIN 500 FEET
OF THE PRESENT SURFACE MEASURED VERTICALLY THEREFROM, AS
RESERVED BY RILEY SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN
BOOK 1587, PAGE 274 OF OFFICIAL RECORDS.
PARCEL 2:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-0108315 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
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-2
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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. MCFFEL T, IN THE DEED
RECORDED MARCH 28, 1942 IN BOOK 653, PAGE 659 OF OFFICIAL RECORDS.
ALSO EXCEPT AN UNDIVIDED 25% IN AND TO A POINT ON SAID LAND THE TOTAL
OIL AND MINERAL RIGHTS IN AND UNDER SAID LAND, WITHOUT HOWEVER, THE
RIGHT OF SURFACE ENTRY UPON SAID LAND WITHIN 500 FEET OF THE PRESENT
SURFACE MEASURED VERTICALLY THEREFROM, AS RESERVED BY RILEY
SPENCE AND DORA E. SPENCER, IN DEED RECORDED IN BOOK 1587, PAGE 274
OF OFFICIAL RECORDS.
APN: 511-0-020-26 5 AND 511-0-020-275
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331
EXHIBIT "8"
TO THIRD AMENDMENT TO DEVELOPMENT AGREEMENT
DANCO SCHEDULE OF PERFORMANCE (DEADLINES)
Originally Exhibit F of First Amendment and Exhibit C of Second Amendment)
Design Phase: Complete on or before March 30, 2023
Tax-Exempt Bond and Tax Credit Applications: March 16, 2022
Tax-Exempt Bond and Tax Credit Allocations: June 15, 2022
Plan Check/Building Permits: March 1, 2023
Date property must be acquired by Affordable Housing Owner: June 30, 2023
Evidence to City of all debUequity funds for all Project costs (with comprehensive Project
budget): 30 days prior to the scheduled close of escrow
Assignment to Affordable Housing Owner and Close Tax Credit and Bond Financing:
June 30, 2023
Grading: To commence within 30 days after acquisition of property by Affordable Housing
Owner or affiliate
Construction: 36 months from commencement of grading
Lease-Up: approximately three months following construction completion
8-1
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332
RESOLUTION NO. PC-2023-700
A RESOLUTION OF THE PLANNING COMMISSION OF
THE CITY OF MOORPARK, CALIFORNIA,
RECOMMENDING THE CITY COUNCIL ADOPT AN
ORDINANCE APPROVING THE FOURTH AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN
THE CITY OF MOORPARK AND MOORPARK CASEY
ROAD L.P., AND MAKING A DETERMINATION OF
EXEMPTION PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT IN CONNECTION
THEREWITH
WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public
hearing and adopted Resolution No. 2017-3582 approving Residential Planned
Development Permit No. 2012-02 for the construction of a 200-unit apartment complex
and associated site improvements on approximately 11.66 acres located at 150 Casey
Road, and adopted a Mitigated Negative Declaration from a previous project, Residential
Planned Development Permit No. 2004-06; and
WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443,
approving Development Agreement (DA) by and between the City of Moorpark and Essex
Moorpark Owner L.P. in association with Residential Planned Development Permit No.
2012-02; and
WHEREAS, on April 17, 2017, the DA was executed by the City of Moorpark and
Essex Moorpark Owner L.P.; and
WHEREAS, on June 7, 2021, an application was filed to amend the terms of the
DA between the City of the Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490
approving the First Amendment to DA No. 2012-03; and
WHEREAS, on September 19, 2022, an application was filed to amend the terms
of the DA between the City of the Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on November 2, 2022, the City Council adopted Ordinance No. 509
approving the Second Amendment to DA No. 2012-03; and
WHEREAS, on December 27, 2022, an application was filed to amend the terms
of the DA between the City of Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on March 1, 2023, the City Council adopted Ordinance No. 511
approving the Third Amendment to DA No. 2012-03; and
ATTACHMENT 5
333
Resolution No. PC-2023-700
Page 2
WHEREAS, on March 10, 2023, by a Grant Deed recorded as Document No.
2023000018401, the Property was conveyed from Essex Moorpark Owner, L.P., a
California limited partnership, to Moorpark Casey Road, L.P., a California limited
partnership, and Moorpark Casey Road L.P. became the owner and developer of the
Project; and
WHEREAS, on March 10, 2023, a Grant Deed dated March 1, 2023, and as
recorded by Document No. 2023000018402, conveyed the “City Site”, as such property
was described in the DA, to the City; and
WHEREAS, on March 29, 2023, an application was filed to amend the terms of the
DA between the City of Moorpark and Moorpark Casey Road L.P.; and
WHEREAS, the Fourth Amendment to the DA was noticed for public hearing on
September 26, 2023, and then the hearing was continued to October 24, 2023. The
request was continued to a date uncertain, after no public hearing occurred on the
request; and
WHEREAS, pursuant to California Government Code Section 65867 and
Moorpark Municipal Code Section 15.40.080, at a duly noticed public hearing on
December 19, 2023, the Planning Commission considered the Fourth Amendment to the
DA, including the agenda report and any supplements thereto and written public
comments; opened the public hearing and took and considered public testimony both for
and against the proposal; and
WHEREAS, the Community Development Director has determined that the Fourth
Amendment to the DA is consistent with the Mitigated Negative Declaration adopted for
the original project on July 18, 2007, including Residential Planned Development No.
2012-02; and
WHEREAS the Developer has demonstrated diligent pursuit of the Project
including commencement of grading activities, submittal of building plans, and continued
engagement with City staff.
NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF
MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The Planning Commission hereby specifically finds that all the facts
set forth in the Recitals are true and correct.
SECTION 2. ENVIRONMENTAL FINDINGS: The Planning Commission concurs
with the Community Development Director that the Fourth Amendment to the DA No.
2012-03 is consistent with the Mitigated Negative Declaration adopted for Residential
Planned Development Permit No. 2004-06. The MND determined that there are no
significant impacts with the inclusion of specific mitigation measures identified in the MND
334
Resolution No. PC-2023-700
Page 3
Mitigation Monitoring and Reporting Program. The proposed amendments to the DA do
not present any additional environmental impacts.
SECTION 3. DEVELOPMENT AGREEMENT FINDINGS: The Planning
Commission finds and declares as follows:
A. The provisions of the Fourth Amendment to the DA are consistent with the General
Plan in that the Project is consistent with the Neighborhood High and Downtown
Specific Plan land use designations, helps achieve the goals of the Land Use
Element and Housing Element, and is consistent with the goals and policies of all
other elements, as noted in the Agenda Report.
B. The provisions of the Fourth Amendment to the DA 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 DA and Fourth Amendment
contain the elements required by Section 15.40.030 and shall be processed through
a duly-noticed public hearing process as required by law.
SECTION 4. Based on the findings and conclusions set forth in the above sections
and based on all the other evidence in the record, the Planning Commission recommends
that the City Council adopt an Ordinance approving the Fourth Amendment to DA No.
2012-03.
SECTION 5. FILING OF RESOLUTION: The Community Development Director
shall cause a certified resolution to be filed in the book of original resolutions.
The action of the foregoing direction was approved by the following vote:
AYES: Commissioner Alva, Barrett, DiCecco, and Hamalainen
NOES:
ABSENT: Chair Landis
ABSTAIN:
PASSED, AND ADOPTED this 19th day of December 2023.
Kipp Landis
Chair
Carlene Saxton
Community Development Director
Exhibit A - Fourth Amendment to Development Agreement No. 2012-03
335
ORDINANCE NO. ___
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING THE FOURTH AMENDMENT
TO DEVELOPMENT AGREEMENT NO. 2012-03 BETWEEN
THE CITY OF MOORPARK AND MOORPARK CASEY
ROAD, L.P., AND MAKING A DETERMINATION OF
EXEMPTION PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT IN CONNECTION
THEREWITH
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on July 18, 2007, the City Council adopted Resolution No. 2007-2611,
adopting a Mitigated Negative Declaration, and approving General Plan Amendment No.
2004-05 for a change of land use designation from Specific Plan 9 (SP-9) – School
Overlay to Very High Density Residential (VH); and
WHEREAS, on March 1, 2017, the City Council conducted a duly noticed public
hearing and adopted Resolution No. 2017-3582 approving Residential Planned
Development Permit No. 2012-02 for the construction of a 200-unit apartment complex
and associated site improvements on approximately 11.66 acres located at 150 Casey
Road, and adopted a Mitigated Negative Declaration from a previous project, Residential
Planned Development Permit No. 2012-02; and
WHEREAS, on March 15, 2017, the City Council adopted Ordinance No. 443,
approving Development Agreement No. 2012-03 (DA) by and between the City of
Moorpark and Essex Moorpark Owner L.P. in association with Residential Planned
Development Permit No. 2012-02; and
WHEREAS, on June 7, 2021, an application was filed to amend the terms of the
DA between the City of the Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on September 15, 2021, the City Council adopted Ordinance No. 490
approving the First Amendment to DA No. 2012-03; and
WHEREAS, on September 19, 2022, an application was filed to amend the terms
of the DA between the City of the Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on November 2, 2022, the City Council adopted Ordinance No. 509
approving the Second Amendment to DA No. 2012-03; and
ATTACHMENT 6
336
Ordinance No. ___
Page 2
WHEREAS, on December 27, 2022, an application was filed to amend the terms
of the DA between the City of the Moorpark and Essex Moorpark Owner L.P.; and
WHEREAS, on March 1, 2023, the City Council adopted Ordinance No. 511
approving the Third Amendment to DA No. 2012-03; and
WHEREAS, on December 19, 2023, the Planning Commission adopted Resolution
No. PC-2023-700 recommending that the City Council approve the Fourth Amendment
to DA No. 2012-03; and
WHEREAS, at a duly noticed public hearing on January 3, 2024, the City Council
considered the Fourth Amendment to the DA, and public testimony related thereto; and
WHEREAS, the City Council has considered all points of public testimony relevant
to the Fourth Amendment to the DA and has given careful consideration to the content of
the Fourth 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 Fourth Amendment to the DA 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 Fourth Amendment to the DA 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 Fourth Amendment to the DA 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 DA, 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.
337
Ordinance No. ___
Page 3
SECTION 3. The City Council hereby adopts the Fourth Amendment to the DA
attached hereto and incorporated herein (Exhibit A) between the City of Moorpark, a
municipal corporation, and Moorpark Casey Road, 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 DA pursuant to
the requirements of Government Code Section 65868.5.
SECTION 4. If any section, subsection, sentence, clause, phrase, part or portion
of this Ordinance is for any reason held to be invalid or unconstitutional by any court of
competent jurisdiction, such decision shall not affect the validity of the remaining portions
of this Ordinance. The City Council declares that it would have adopted this Ordinance
and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 5. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall make
a written record of the passage and adoption thereof in the minutes of the proceedings of
the City Council at which the same is passed and adopted; and shall publish notice of
adoption in the manner required by law.
PASSED, AND ADOPTED this __ day of ___________, 2024.
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
Exhibit A – Fourth Amendment to Development Agreement with Attachments
338
Ordinance No. ___
Page 4
Exhibit A
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Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to §§ 6103, 27383 and 27388.1
of the California Government Code
FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
BY AND BETWEEN
CITY OF MOORPARK
AND
MOORPARK CASEY ROAD, L.P.
EXHIBIT A
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FOURTH AMENDMENT
TO DEVELOPMENT AGREEMENT
This FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT (“Fourth
Amendment”) is dated as of ___________, 2024, and is entered into by and between the
CITY OF MOORPARK, a municipal corporation (“City”), and MOORPARK CASEY
ROAD, L.P., a California limited partnership (“Developer”), as successor in interest to
ESSEX MOORPARK OWNER, L.P., a California limited partnership which was the
original owner and developer of the Property described herein (“Original Developer”).
RECITALS
WHEREAS, the City and the Original 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
WHEREAS, the City and the Original Developer entered into the First Amendment
to the Development Agreement (“First Amendment”) dated August 2, 2022, which was
recorded on August 4, 2022, as Document No. 2022000082017 in the Official Records of
Ventura County, California; and
WHEREAS, the City and the Original Developer entered into the Second
Amendment to the Development Agreement (“Second Amendment”) dated December 2,
2022, which was recorded on December 14, 2022, as Document No. 2022000115909 in
in the Official Records of Ventura County, California; and
WHEREAS, the City and Original Developer entered into the Third Amendment to
the Development Agreement (“Third Amendment”) dated April 5, 2023, which was
recorded on April 7, 2023, as Document No. 2023000025399 in the Official Records of
Ventura County, California, (as so amended, the “DA”); and
WHEREAS, on March 9, 2023 and by Grant Deed recorded on March 10, 2023 as
Document No. 2023000018401, Developer became the successor in interest to the
Property and to the DA from the Original Developer, and thereafter the Developer
immediately conveyed the “City Site,” as such property was described in the DA to the
City by way of a Grant Deed dated March 1, 2023 and recorded as Document No.
2023000018402; and
WHEREAS, on March 9, 2023, the City and Developer entered into the Amended
and Restated Affordable Housing Agreement that was recorded as Document No.
2023000018406; and
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WHEREAS, the Development Agreement, as amended by the First Amendment,
Second Amendment and Third Amendment, is referred to as the “DA” and pertains to the
real property described on Exhibit A, attached hereto (the “Property”); and
WHEREAS, City and Developer desire to amend the DA in certain respects, as
more particularly set forth below.
NOW, THEREFORE, the parties hereby agree as follows:
1. Amendments.
a. Section 6.13 of the DA is hereby deleted and is replaced with the
following revised Section 6.13:
“6.13 Assessment Districts. Prior to issuance of a Zoning Clearance
for the first building permit or the approval of any final map for the
Project: (a) Owner shall pay the City a single Fifty Thousand Dollar
($50,000) Assessment District Formation Fee; and (b) a fully-funded
Assessment District shall be formed that includes the Property. The
Assessment District shall be for the purposes of funding future costs for
the maintenance of the parkway landscaping on Casey Road and
Walnut Canyon Road, landscaping and irrigation of the landscaped area
on the City Site and southerly of the retaining wall along the northerly
boundary of the City Site, the maintenance of the storm water quality
basin and drainage improvements, including any basin landscaping and
irrigation, and the maintenance of the storm water basin access drive,
pedestrian walkway, emergency access drive on the City Site. 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 that fiscal year. The City
shall administer the annual setting of the levy of the Assessment District,
and any costs related to such administration shall be charged to the
Assessment District as permitted by law. Owner agrees to cast
affirmative ballots for the establishment of the Assessment District 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 the 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 City Manager or his or her designee from time
to time.”
b. Section 6.25 of the DA is hereby deleted and is replaced with the
following revised Section 6.25:
“6.25 Emergency and Secondary Access; Pedestrian Walkway.
Developer agrees, prior to issuance of certificate of occupancy for the
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first residential building within the Project to construct: (i) a road from
High Street to the Property through the City Site for vehicular emergency
and secondary access, and (ii) a walkway from High Street to the
Property through the City Site at its sole cost and expense, as depicted
on the building plans for the Project approved by the City’s Engineer and
Community Development Director. The Ventura County Fire
Department has determined that no improvements to High Street are
required for emergency secondary access to the Project. The Developer
shall have the right to construct and utilize the emergency access road
and pedestrian walkway in accordance with an Access and Construction
Easement Agreement (or similarly named document) that shall be
entered into between the City and the Developer in the general form
attached hereto as Exhibit “B” to this Fourth Amendment to the DA. The
emergency access road and pedestrian walkway shall be subject to
modification and relocation, at the City’s discretion but subject to the
conditions set forth in the easement agreement, as necessary to
complete the extension of High Street within or abutting the City Site and
to otherwise use the City Site for other lawful purposes.”
c. The last paragraph of Section 6.26 of the DA (Section 10 of the First
Amendment, as amended by the Second Amendment) is hereby further
amended to add the following sentence at the end of that last paragraph:
“The Offsite Improvement Performance Bond and Payment Bond shall be
obtained and filed with the City prior to final inspection or the issuance of a
certificate of occupancy for the first multifamily residential building
constructed on the Property.”
d. Section 6.40 of the DA is hereby deleted and is replaced with the
following revised Section 6.40:
“6.40 City Financing of Certain Development Fees through a
Residual Receipts Loan. Developer has requested and City has agreed
to finance the payment of certain portions of City development impact
fees required in Sections 6.3 (Development Fee), and 6.7 (Park Fees
and Public Art Fee) to be paid for construction of the Project in the form
of a $3,890,500 fifty-five year Residual Receipts Loan (the “City
Residual Receipts Loan”) as described below. The City Residual
Receipts Loan shall be evidenced by the City Loan Note and secured by
the City Loan Deed of Trust, which shall include a term of 55 years from
completion and simple interest at 3.00% per annum, which shall be
repayable solely from the City’s pro rata share of 50% of Residual
Receipts (which will be shared by other public lenders making loans
required to finance the development). The City Manager shall have the
authority to adjust the residual receipts percentage in the City Loan Note
before it is executed in order to be consistent with the foregoing. The
City Residual Receipts Loan shall be secured by a deed of trust
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encumbering the Project that is subordinate only to the liens of the
Project’s bond financing and any state agency debt that is required by
regulation to be senior to the City’s Residual Receipts Loan, and the City
Manager shall have the authority to execute reasonable subordination
agreements in connection therewith. The term "Residual Receipts" in
a particular calendar year shall mean the amount by which Gross
Revenue exceeds Annual Operating Expenses.
"Gross Revenue" means for each calendar year, all revenue, income,
receipts, and other consideration actually received by the borrower from
operation and leasing of the Project. Gross Revenue includes, but is not
limited to: (1) All rents, fees and charges paid by tenants, payments or
other rental subsidy payments received for the dwelling units, deposits
forfeited by tenants, all cancellation fees, price index adjustments and
any other rental adjustments to leases or rental agreements resulting in
actual income to Borrower; (2) The proceeds of business interruption or
similar insurance; (3) Any payment received in consideration for the
leasing or other use of any portion of the project; (4) Subject to the rights
of senior lenders, the proceeds of casualty insurance to the extent not
utilized to repair or rebuild the project (or applied toward the cost of
recovering such proceeds); (5) Subject to the rights of senior lenders,
condemnation awards for a taking of part or all of the project for a
temporary period; and (6) Gross Revenue shall exclude tenants' security
deposits, loan proceeds, capital contributions or other similar advances.
"Annual Operating Expenses" with respect to a particular calendar
year means the following costs reasonably and actually incurred for
operation and maintenance of the project to the extent that they are
consistent with an annual independent audit performed by a certified
public accountant using generally accepted accounting principles:
(1) Property taxes and assessments imposed on the property; (2) Debt
service and associated fees currently due on a non-optional basis
(excluding debt service due from residual receipts or surplus cash of the
project) on loans associated with development of the project and
approved by the City in writing; (3) Property management fees and
reimbursements, not to exceed fees and reimbursements which are
standard in the industry, and pursuant to a management contract
approved by the City in writing; (4) Premiums for property damage and
liability insurance; (5) Any annual license or certificate of occupancy fees
required for operation of the Project; (6) Annual regulatory compliance
monitoring fees payable to the City; (7) Security services; (8) Advertising
and marketing costs; (9) Replenishment of Project reserves and cash
deposited into reserves for capital replacements of the Project in an
amount approved by the City in writing or required as part of any
construction or permanent loan for the Project that is secured by a deed
of trust on the Project, and which loan has been approved by the City in
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writing; (10) Partnership management fees, asset management fees,
and general partner management fees in the amount in the Borrower’s
amended and restated partnership agreement which has been delivered
to the City; (11) Utility services not paid for directly by tenants, including
without limitation, water, sewer, and trash collection; (12) Maintenance
and repair, including pest control, landscaping, grounds maintenance,
painting and decorating, cleaning, common systems repair, janitorial
supplies and services; (13) Social services fees and expenses;
(14) Annual audit fees, inspection fees, or monitoring fees required in
relation to any approved financing; (15) Extraordinary operating costs
specifically approved by the City in writing in its reasonable discretion;
(16) Payments of deductibles in connection with casualty insurance
claims not normally paid from reserves, the amount of uninsured losses
actually replaced, repaired or restored, and not normally paid from
reserves; (17) Reasonable accounting fees and legal fees;
(18) Payments of Deferred Developer Fee; and (19) Other ordinary and
reasonable operating expenses approved by the City in its reasonable
discretion and not listed above.
Annual Operating Expenses shall exclude the following: depreciation,
amortization, depletion or other non-cash expenses, the Incentive
Management Fee (as defined in the Borrower’s amended and restated
partnership agreement), and any amount expended from a reserve
account.
e. Section 7.18 of the DA is hereby deleted and is replaced with the
following revised Section 7.18:
“7.18 Storm Water/Flood Detention Basin. Developer shall construct a
permanent detention basin, temporary sediment basin, and access road
to the basins on the City Site in accordance with grading plans approved
by the City Engineer and Community Development Director, at
Developer’s sole cost and expense. The Developer shall have the right
to construct such improvements and use such basins for purposes of
the Project in accordance with a Drainage and Construction Easement
Agreement that shall be entered into between the City and the
Developer in the general form attached hereto as Exhibit “C” to this
Fourth Amendment to the DA. The detention basin, temporary sediment
basin and access road to the basins shall be subject to modification and
relocation, at the City’s discretion but subject to the conditions set forth
in the easement agreement, as necessary to complete the extension of
High Street within or abutting the City Site and to otherwise use the City
Site for other lawful purposes.”
2. Reaffirmation. Except as specifically amended hereby, the DA is and shall
remain in full force and effect; and to the extent that there are any
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inconsistencies between the provisions of this Fourth Amendment and the DA,
the provisions hereof shall control.
3. Counterparts. This Fourth Amendment may be executed by the parties hereto
in separate counterparts, and signatures delivered electronically, and each
counterpart when so executed and delivered shall be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be
executed the day and year first above written.
DEVELOPER:
MOORPARK CASEY ROAD, L.P.
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
CITY:
CITY OF MOORPARK,
a municipal corporation
By:
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
APPROVED AS TO FORM:
By:
Kevin G. Ennis, City Attorney
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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)
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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)
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EXHIBIT “A”
TO FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS
EVIDENCED BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO.
20160831-00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK
5, PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP
ENTITLED "MAP OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND
ADDITION TO MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY,
CALIFORNIA" IN SAID CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN
BOOK 5, PAGE 37 OF SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER
OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI
AS PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN
THE OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
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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 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING
A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS PER MAP FILED IN BOOK
5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID
COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK
BY DEED APRIL 30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL
RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE
FOLLOWING DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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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 “B”
TO FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
EMERGENCY ACCESS AND CONSTRUCTION EASEMENT AGREEMENT
(Exhibit L to DA)
This instrument prepared by and when recorded return to:
Moorpark Casey Road LP
5251 Ericson Way
Arcata, CA 95521
EMERGENCY ACCESS, PEDESTRIAN ACCESS, AND CONSTRUCTION
EASEMENT AGREEMENT
This Emergency Access, Pedestrian Access, and Construction Easement Agreement (this
“Agreement”) is dated as of _________, 2024, by and between MOORPARK CASEY ROAD
LP, a California limited partnership, whose address is 5251 Ericson Way, Arcata, CA 95521
(“Grantee”), and the CITY OF MOORPARK, a California municipal corporation, whose
address is 799 Moorpark Avenue, Moorpark, California 93021 (“Grantor”). Grantor and Grantee
are sometimes individually referred to herein as a “Party” or collectively as the “Parties.”
RECITALS
A. Grantor owns certain real property in the City of Moorpark, Ventura County, State
of California, located at the corner of High Street and Walnut Canyon Road and more particularly
described on Exhibit “A” attached hereto (“Grantor Land”).
B. Grantee owns certain real property in the City of Moorpark, Ventura County, State
of California, located at 150 Casey Road and more particularly described on Exhibit “B” attached
hereto (“Grantee Land”).
C. Grantee intends to develop a 200-unit affordable apartment community commonly
known as Vendra Gardens (the “Project”) on the Grantee Land.
D. The Grantor Land is currently vacant.
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E. The Grantor Land and the Grantee Land are sometimes referred to individually
herein as a “Parcel” and collectively as the “Parcels.”
F. As a condition of Project approval by the City of Moorpark Planning Department,
and as a pre-requisite of the Project receiving its certificate of occupancy from the City of
Moorpark the Project, the Project is required to have emergency and secondary vehicular ingress
and egress and pedestrian ingress and egress through the Grantor Property from High Street.
G. Grantor desires to grant a non-exclusive access easement (“Emergency Access
Easement”) in favor of the Grantee, and the employees, agents, guests, and invitees of the Project
(collectively, the “Grantee Parties”) for emergency and secondary vehicular access, ingress, and
egress to the Grantee Land, from and to High Street over the easement area legally described and
depicted on Exhibit “C” attached hereto (the “Emergency Access Area”).
H. Grantor also desires to grant a non-exclusive pedestrian access easement
(“Pedestrian Access Easement”) in favor of the Grantee Parties for pedestrian access, ingress,
and egress to the Grantee Land, from and to High Street over the easement area described and
depicted on Exhibit “C” attached hereto (the “Pedestrian Access Area” and together with the
Emergency Access Area, the “Access Areas”).
I. As a condition of Project approval by the City of Moorpark Planning Department,
and as a pre-requisite of the Project receiving its certificate of occupancy from the City of
Moorpark the Project is also required to construct the roadway to be used for emergency and
secondary, ingress and egress in the Emergency Access Area (the “Access Road
Improvements”), as well as the walkway to be used for pedestrian ingress and egress in the
Pedestrian Access Area (the “Walkway Improvements”), at its cost and as depicted on the
approved plans for the Project identified as “Precise Grading Plans” as approved by the City of
Moorpark on March 9, 2023 (“Approved Plans”).
J. Grantor also desires to grant a temporary construction easement in favor of Grantee
and its agents, contractors, and subcontractors (“Grantee Construction Parties”) in connection
with the construction of the Access Road Improvements and Walkway Improvements, to allow the
Grantee Construction Parties access to the Grantor Land to construct the Access Road
Improvements and Walkway Improvements substantially in accordance with the Approved Plans
(collectively, the “Work”).
NOW, THEREFORE, in consideration of the foregoing and mutual representations,
warranties, covenants, and agreements herein contained, and such other consideration, the receipt
of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated into this Agreement.
2. Term and Commencement Date. The commencement date of this Agreement shall be the
date that the Grantee acquires fee title to the Grantee Land (“Closing Date”) or such later date
set forth herein. Except for the construction easement set forth in Section 4 below, the covenants
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under this Agreement are to run with the land in perpetuity and will be binding on all parties and
all persons claiming under them.
3. Grant of Easements.
3.1 Emergency Access Easement. Subject to the terms and conditions of this
Agreement, Grantor hereby grants to the Grantee Parties, a nonexclusive easement for vehicular
ingress and egress over, through, and from the Grantee Land to High Street through the
Emergency Access Area. By virtue of this Agreement, Grantor shall maintain a vehicular ingress
and egress connection between the Grantor Land and the Grantee Land to High Street by way of
the Access Road Improvements, as depicted on Exhibit “C” hereto. Except as otherwise provided
in Section 6 of this Agreement, Grantor shall not enter into any agreement or do or suffer any
other act or permit any condition which would unreasonably interfere with the reasonable access
to and use of the Emergency Access Easement set forth herein.
3.2 Pedestrian Access Easement. Subject to the terms and conditions of this
Agreement, Grantor hereby grants to the Grantee Access Parties, a nonexclusive easement for
pedestrian ingress and egress over, through, and from the Grantee Land to High Street through
the Pedestrian Access Area. By virtue of this Agreement, Grantor shall maintain a pedestrian
ingress and egress connection between the Grantor Land and the Grantee Land to High Street by
way of the Walkway Improvements, as depicted on Exhibit “C” hereto. Except as otherwise
provided in Section 6 of this Agreement, Grantor shall not enter into any agreement or do or
suffer any other act or permit any condition which would unreasonably interfere with the
reasonable access to and use of the Pedestrian Access Easement set forth herein.
4. Grant of Temporary Construction Easement. Grantor hereby grants to the Grantee
Construction Parties, a temporary construction easement (the “Construction Easement”) to be
used for the movement and staging of equipment, and the movement of a work force, over, upon
and across the Grantor Land, for construction of the Access Road Improvements in the
Emergency Access Area and the Walkway Improvements in the Pedestrian Access Area,
together with the right of ingress and egress through the Grantor Land. The Construction
Easement shall automatically expire and be of no further force and effect on the date that the City
of Moorpark performs a final inspection on, or issues a certificate of occupancy for, the last
building in the Project (“Occupancy Date”).
5. Construction of Improvements. Grantee shall cause the Work to be performed
substantially in accordance with the Approved Plans and all other applicable plans and
specifications approved by Grantor’s City Engineer and Community Development Director. Any
and all Work performed by Grantee within the Grantor Land shall be performed in a good and
workmanlike manner and in compliance with all applicable laws, rules, regulations and
ordinances. Grantee agrees that all Work shall be performed at its sole cost and expense.
6. Modification and Relocation of Easements and Improvements. Grantor shall have the
right, in its sole and absolute discretion after the Occupancy Date and at Grantor’s cost, to modify
or relocate all or any portion of, and/or eliminate portions of, the Emergency Access Easement,
Pedestrian Access Easement, and Construction Easement and/or improvements within such
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easement areas, in connection with Grantor’s lawful use, development or redevelopment of the
Grantor Land, including but not limited to, the extension of High Street through the Grantor Land
by Grantor or by a third party at the request of Grantor, so as to permit Grantor to construct or
cause the construction of such extension with design features required and approved by Grantor
or permit Grantor to develop or redevelop the Grantor Land, so long as such elimination,
relocation, or modification does not materially adversely impact the use or operation of the
Project. Grantor acknowledges and agrees that any such relocation or elimination of
improvements by the City pursuant to this Section shall not result in a default under the
Development Agreement entered into between the Parties, and that elimination of all or any
portion of the Emergency Access Easement shall not result in a violation of the City of Moorpark
Municipal Code.
7. Indemnification. Unless caused by the gross negligence or willful misconduct of Grantor,
Grantee hereby agrees to defend, indemnify and hold Grantor harmless from and against any and
all claims, liabilities, loss, damage, cost or expense, including, but not limited to, attorneys’ fees
and court costs (collectively, “Loss”), which may be incurred or suffered by Grantor in
connection with the use of the Grantor Land by the Grantee Parties and Grantee Construction
Parties. Notwithstanding the foregoing, Grantor shall not be indemnified for any Loss to the
extent caused by the gross negligence or willful misconduct of Grantor. This provision shall
survive the expiration or termination of this Agreement.
8. Maintenance Obligations. The Access Road Improvements and Walkway Improvements
shall be included within a maintenance assessment district (the “District”) to be created by the
Grantor prior to the Occupancy Date. Grantee’s land shall be included within the District and be
subject to assessments under the District to contribute to the maintenance of the Access Road
Improvements and Walkway Improvements. If and when other private property owners on
Grantor’s land or on other lands off-site from Grantor’s land or Grantee’s land utilize or benefit
from the Access Road and Pedestrian Walkway, such property owners shall be included within the
District and contribute their legally required and proportionate share of that maintenance cost
through assessments imposed by the District.
9. Mortgagee Protection. Notwithstanding anything to the contrary herein, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust
made in good faith for value now or hereafter encumbering any Parcel or any portion thereof. Any
party acquiring title to any Parcel or any portion thereof pursuant to the foreclosure or deed-in-lieu
of foreclosure of a Mortgage shall not be liable for any fines, penalties, reimbursement obligations
or other amounts owing under this Agreement which arise prior to the date such party acquires
title to any Parcel or any portion thereof.
10. Entire Agreement. This Agreement constitutes the whole agreement between the Parties
hereto and no warranties, agreements or representations have been made or shall be binding upon
either Party unless set forth within this Agreement or within a written addendum executed by all
Parties hereto. All prior oral agreements between the Parties are superseded by this Agreement.
11. Amendments. Except as otherwise set forth herein, this Agreement may not be amended,
modified, changed, or terminated except by a writing signed by all the Parties hereto. A Party may
waive one or more of its rights under this Agreement in writing signed by the Party and such
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writing need not be recorded. Otherwise, no modification or amendment of any provision of this
Agreement shall be binding unless signed by both Parties and recorded against the Parcels in the
real property records of Ventura County, California.
12. Notice. (a) All notices shall be addressed to the parties at such addresses as are
specified in in the introduction paragraph on page 1 to this Agreement, or as the parties may from
time to time direct in writing. Specifically, the Parties agree to give the Investor Limited Partner
(as defined below) and any Mortgagee of a Parcel prompt written notice of any default by the other
Party under this Agreement. Any notice under this Agreement shall be in writing and be delivered
in person or by public or private courier service (including U.S. Postal Service Express Mail and
Federal Express) or certified mail. Any notice given by certified mail shall be sent with return
receipt requested. Any notice shall be deemed to have been given on (a) the actual day of delivery
or refusal, or (b) the day of mailing by registered or certified mail.
(b) Notice to Investor Limited Partner in the event of Grantee’s default.
Grantor agrees to give RBC Community Investments, LLC, a Delaware limited liability company,
Grantee’s investor limited partner (“Investor Limited Partner”), written notice of any and all
defaults by Grantee under this Agreement, and an opportunity, at the Investor Limited Partner’s
option, to cause the cure of such default within the cure periods set forth herein, prior to exercising
any remedies under this Agreement. Grantor agrees that the Investor Limited Partner will have
thirty (30) days after the delivery to Investor Limited Partner of notice of such default to cure, or,
as to non-monetary defaults, such longer period as is reasonably necessary for the Investor Limited
Partner to effect a cure, provided that curative action is commenced within the cure period and
diligently prosecuted. Grantor agrees to accept cure by the Investor Limited Partner as if such cure
were made by Grantee. All notices to Investor Limited Partner shall be sent in accordance with the
procedures for delivering notices set forth herein to the following address or such alternate or
additional contact names and/or addresses of which Grantor is so notified in writing by the Investor
Limited Partner:
c/o RBC Community Investments, LLC
600 Superior Avenue, Suite 2300
Cleveland, Ohio 44114
Attention: President and General Counsel
with a copy to:
Bocarsly Emden Cowan Esmail & Arndt LLP
633 West Fifth Street, 64th Floor
Los Angeles, California 90071
Attention: Kyle Arndt, Esq.
(213) 239-8048
13. Time. Time is of the essence of this Agreement.
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14. Counterparts. This Agreement may be executed in counterparts and upon every Party
having executed a counterpart, each signed copy shall have the same force and effect as an original
document and as if the Parties to the counterparts had signed the same document.
15. Binding Agreement. This Agreement shall extend to and bind the representatives,
successors and assigns of the parties hereto.
16. Severability. If any term or provision of this Agreement or the application of it to any
Party or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to Parties or circumstances, other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
17. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall
they be in any way interpreted or construed to create, a joint venture, partnership, or any other
similar relationship between the Parties.
18. Captions and Headings. The captions and headings in this Agreement are for reference
only and shall not be deemed to define or limit the scope or intent of any of the terms, covenants,
conditions or agreements contained herein.
19. Exhibits and Recitals. The recitals above, mortgagee consents, and exhibits attached
hereto are incorporated herein and made a part hereof to the full extent as if each were set forth in
its entirety in the body hereof.
20. Interpretation. This Agreement is intended to satisfy the requirements of Internal Revenue
Code Section 42, as amended, and the treasury regulations promulgated thereunder and all
applicable affordable housing requirements, and shall be interpreted consistently therewith. If this
Agreement does not satisfy any such requirement, it shall be retroactively amended in the smallest
amount possible so as to comply with such requirements. The parties agree to make any
adjustments necessary to facilitate such compliance.
21. Estoppel Certificates. From time to time, upon written request of either party or any of
their mortgagees, successors or assigns, each party shall execute and deliver to the requesting party
an estoppel certificate confirming whether there are any defaults under this Agreement and such
other matters as such requesting party shall reasonably request.
22. Choice of Law. This Agreement and all rights and obligations of the parties hereunder
will be governed by and construed and interpreted in accordance with the laws of the State of
California.
23. Insurance. Grantee shall maintain comprehensive broad form general liability insurance
in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, covering the Access
Area and shall cause its insurance carrier to name such requesting Party as an additional insured
on its general liability policy and shall provide evidence of such insurance to Grantor. This
provision shall survive the expiration or termination of the Agreement.
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24. No Public Dedication. Nothing contained herein shall be deemed to be a gift or dedication
of any portion of the Grantor Land for the benefit of the general public or for any public purposes
whatsoever, it being the intention of the parties hereto that this Agreement shall be strictly limited
to the purposes herein expressed.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
day, month and year first above written.
GRANTEE:
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
GRANTOR:
CITY OF MOORPARK,
a California municipal corporation
By:
Name: ______________________________
Title: _______________________________
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STATE OF CALIFORNIA )
COUNTY OF )
On ____________________, before me, ____________________________, a 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.
_______________________________
Notary Public
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
COUNTY OF )
On ____________________, before me, ____________________________, a 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.
_______________________________
Notary Public
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR LAND
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT
RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF
MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS
DOCUMENT NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF
SAID COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK BY DEED APRIL
30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE FOLLOWING DESCRIBED
LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-
03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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: 511-0-020-275
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EXHIBIT B
LEGAL DESCRIPTION OF GRANTEE LAND
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED
BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-
00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A
PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5,
PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY
RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP
OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO
MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID
CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF
SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE
OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING
DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
3RD THENCE, SOUTH 89°03'54" WEST 293.78 FEET TO A POINT IN THE WEST LINE
OF SAID PARCEL 1A.
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
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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.
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EXHIBIT C
LEGAL DESCRIPTIONS/DEPICTIONS OF EMERGENCY ACCESS AND
PEDESTRIAN WALKWAY AREAS
[attached]
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EXHIBIT “C”
TO FOURTH AMENDMENT TO DEVELOPMENT AGREEMENT
DRAINAGE AND CONSTRUCTION EASEMENT AGREEMENT
(Exhibit M to DA)
This instrument prepared by and when recorded return to:
Moorpark Casey Road LP
5251 Ericson Way
Arcata, CA 95521
DRAINAGE AND CONSTRUCTION EASEMENT AGREEMENT
This Drainage and Construction Easement Agreement (this “Agreement”) is dated as of
_________, 2024, by and between MOORPARK CASEY ROAD LP, a California limited
partnership, whose address is 5251 Ericson Way, Arcata, CA 95521 (“Grantee”), and the CITY
OF MOORPARK, a California municipal corporation, whose address is 799 Moorpark Avenue
Moorpark, California 93021 (“Grantor”). Grantor and Grantee are sometimes individually
referred to herein as a “Party” or collectively as the “Parties.”
RECITALS
A. Grantor owns certain real property in the City of Moorpark, Ventura County, State
of California, located at the corner of High Street and Walnut Canyon Road and more particularly
described on Exhibit “A” attached hereto (“Grantor Land”).
B. Grantee owns certain real property in the City of Moorpark, Ventura County, State
of California, located at 150 Casey Road and more particularly described on Exhibit “B” attached
hereto (“Grantee Land”).
C. Grantee intends to develop a 200-unit affordable apartment community commonly
known as Vendra Gardens (the “Project”) on the Grantee Land.
D. The Grantor Land is currently vacant.
E. The Grantor Land and the Grantee Land are sometimes referred to individually
herein as a “Parcel” and collectively as the “Parcels.”
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F. As a condition of Project approval by the City of Moorpark Planning Department
and as a pre-requisite of the Project receiving its certificate of occupancy from the City of
Moorpark, Grantee is required to utilize a detention basin on the Grantor Land for the flow of
storm water that originates both upslope of the Grantee Land and from the Grantee Land that flows
through the Grantor Land to a detention basin (“Detention Basin”) within the portion of the
Grantor Land legally described and depicted on Exhibit “C” attached hereto (the “Detention Basin
Easement Area”).
G. Grantee is also required, as a condition of Project approval by the City of Moorpark
Planning Department and as a pre-requisite of the Project receiving its final inspection or certificate
of occupancy from the City of Moorpark, to construct the Detention Basin and a related access
road as depicted on Exhibit “C” attached hereto (collectively, “Detention Basin Improvements”)
at its cost and as depicted on the approved plans for the Project identified as “Precise Grading
Plans” as approved by the City of Moorpark on March 9, 2023 (“Approved Plans”).
H. Grantee is also required, as a condition of Project approval by the City of Moorpark
Planning Department and as a pre-requisite of the Project receiving its final inspection or certificate
of occupancy from the City of Moorpark, to construct a sediment basin on the Grantor Land as an
erosion control measure (“Sediment Basin”) as depicted on Exhibit “C” attached hereto, as well
as landscaping improvements (collectively, “Sediment Basin Improvements”) as depicted on the
Approved Plans.
I. As a condition of Project approval by the City of Moorpark Planning Department
and as a pre-requisite of the Project receiving its final inspection or certificate of occupancy from
the City of Moorpark, Grantee is also required to construct a retaining wall on the Grantor Property
(the “Retaining Wall”) within the portion of the Grantor Land legally described and depicted on
Exhibit “C” (the “Retaining Wall Area”).
J. The Grantor Land has been used to stockpile soil in accordance with that certain
Easement Agreement between Grantor and Essex Moorpark Owner, L.P., dated April 17, 2017,
and recorded on April 17, 2017 as Instrument No. 20170417-0050722 in the Official Records of
Ventura County (the “Stockpiling Easement”) which soil the Grantee shall remove and use in
connection with the development of the Project. As a condition of Project approval by the City of
Moorpark Planning Department and as a pre-requisite of the Project receiving its certificate of
occupancy from the City of Moorpark, Grantee is required to restore the Grantor Land upon the
removal of the stockpiled soil to the graded condition that is set forth in the Approved Plans.
K. Grantor desires to grant a temporary construction easement in favor of the Grantee
and its agents, contractors, and subcontractors (“Grantee Construction Parties”) to allow the
Grantee Construction Parties access to the Grantor Land to construct the Detention Basin
Improvements, Sediment Basin Improvements, and Retaining Wall and for the removal of the
stockpiled soil and grading and restoration of the Grantor Land substantially in accordance with
the Approved Plans (collectively, the “Work”).
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NOW, THEREFORE, in consideration of the foregoing and mutual representations,
warranties, covenants, and agreements herein contained, and such other consideration, the receipt
of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. Incorporation of Recitals. The foregoing recitals are incorporated into this Agreement.
2. Term and Commencement Date. The commencement date of this Agreement shall be
the date that the Grantee acquires fee title to the Grantee Land (“Closing Date”) or such later
date set forth herein. Except for the Construction Easement set forth herein, the covenants under
this Agreement are to run with the land in perpetuity and will be binding on all parties and all
persons claiming under them.
3. Grant of Drainage Easement. Subject to the terms and conditions of this Agreement,
Grantor hereby grants to the Grantee, a perpetual non-exclusive easement for the use of the
Detention Basin for the purposes of draining storm water that flows from land upslope of the
Grantee Land and also from the Grantee Land through the Grantor Land to the Detention Basin.
Except as otherwise provided in Section 6 of this Agreement, Grantor shall not enter into any
agreement or do or suffer any other act or permit any condition which would unreasonably
interfere with the reasonable access to and use of the easements set forth herein.
4. Grant of Temporary Construction Easements. Grantor hereby grants to the Grantee
Construction Parties, a temporary construction easement (the “Construction Easement”) to be
used for the movement and staging of equipment, and the movement of a work force, over, upon
and across the Grantor Land, to perform the Work on the Grantor Land together with the right of
ingress and egress through the Grantor Land. The Construction Easement shall automatically
expire and be of no further force and effect on the date that the City of Moorpark performs a final
inspection on, or issues a certificate of occupancy for, the last building in the Project (“Occupancy
Date”).
5. Construction of Improvements. Grantee shall cause the Work to be performed
substantially in accordance with the Approved Plans and all other applicable plans and
specifications approved by Grantor’s City Engineer and Community Development Director. Any
and all Work performed by Grantee within the Grantor Land shall be performed in a good and
workmanlike manner and in compliance with all applicable laws, rules, regulations and ordinances.
Grantee agrees that all Work shall be performed at its sole cost and expense.
6. Modification and Relocation of Easements and Improvements. Grantor shall have the
right, in its sole and absolute discretion and at Grantor's cost after the Occupancy Date, to modify
or relocate all or any portion of, and/or eliminate portions of, the Detention Basin Easement Area,
the Sediment Basin Improvements, the Retaining Wall Easement Area, and/or improvements
within such easement areas, in connection with Grantor's lawful use, development or
redevelopment of the Grantor Land, including but not limited to, the extension of High Street
through the Grantor Land by Grantor or by a third party at the request of Grantor, so as to permit
Grantor to construct or cause the construction of such extension with design features required and
approved by Grantor or permit Grantor to develop or redevelop the Grantor Land, so long as such
modification, relocation, or elimination does not materially adversely impact the use or operation
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of the Project. Grantor hereby acknowledges and agrees that any such relocation or elimination of
improvements by the City pursuant to this Section shall not result in a default under the
Development Agreement entered into between the Parties, and shall not result in a violation of the
City of Moorpark Municipal Code.
7. Indemnification. Unless caused by the gross negligence or willful misconduct of
Grantor, Grantee hereby agrees to defend, indemnify and hold Grantor harmless from and against
any and all claims, liabilities, loss, damage, cost or expense, including, but not limited to,
attorneys’ fees and court costs (collectively, “Loss”), which may be incurred or suffered by
Grantor in connection with the use of the Grantor Land by the Grantee Parties and Grantee
Construction Parties. Notwithstanding the foregoing, Grantor shall not be indemnified for any
Loss to the extent caused by the gross negligence or willful misconduct of Grantor. This provision
shall survive the expiration or termination of this Agreement.
8. Maintenance Obligations. The Detention Basin Improvements, and Retaining Wall shall
be included within a maintenance assessment district (the “District”) to be created by the Grantor
prior to the Occupancy Date. Grantee’s land shall be included within the District and subject to
assessments under the District to contribute to the maintenance of the Detention Basin
Improvements and Retaining Wall. If and when other private property owners on Grantor’s land
or on other lands offsite from Grantor's land or Grantee’s land that utilize or benefit from the
Detention Basin Improvements and Retaining Wall, such property owners shall be included within
the District and contribute their legally required and proportionate share of that maintenance cost
through assessments imposed by the District.
9. Mortgagee Protection. Notwithstanding anything to the contrary herein, no breach of this
Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage or deed of trust
made in good faith for value now or hereafter encumbering any Parcel or any portion thereof. Any
party acquiring title to any Parcel or any portion thereof pursuant to the foreclosure or deed-in-lieu
of foreclosure of a Mortgage shall not be liable for any fines, penalties, reimbursement obligations
or other amounts owing under this Agreement which arise prior to the date such party acquires
title to any Parcel or any portion thereof.
10. Entire Agreement. This Agreement constitutes the whole agreement between the Parties
hereto and no warranties, agreements or representations have been made or shall be binding upon
either Party unless set forth within this Agreement or within a written addendum executed by all
Parties hereto. All prior oral agreements between the Parties are superseded by this Agreement.
11. Amendments. Except as otherwise set forth herein, this Agreement may not be amended,
modified, changed, or terminated except by a writing signed by all the Parties hereto. A Party may
waive one or more of its rights under this Agreement in writing signed by the Party and such
writing need not be recorded. Otherwise, no modification or amendment of any provision of this
Agreement shall be binding unless signed by both Parties and recorded against the Parcels in the
real property records of Ventura County, California.
12. Notice. (a) All notices shall be addressed to the parties at such the addresses as are
specified in the introductory paragraph on page 1 to this Agreement, or as the parties may from
time to time direct in writing. Specifically, the Parties agree to give the Investor Limited Partner
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(as defined below) and any Mortgagee of a Parcel prompt written notice of any default by the other
Party under this Agreement. Any notice under this Agreement shall be in writing and be delivered
in person or by public or private courier service (including U.S. Postal Service Express Mail and
Federal Express) or certified mail. Any notice given by certified mail shall be sent with return
receipt requested. Any notice shall be deemed to have been given on (a) the actual day of delivery
or refusal, or (b) the day of mailing by registered or certified mail.
(b) Notice to Investor Limited Partner in the event of Grantee’s default.
Grantor agrees to give RBC Community Investments, LLC, a Delaware limited liability company,
Grantee’s investor limited partner (“Investor Limited Partner”), written notice of any and all
defaults by Grantee under this Agreement, and an opportunity, at the Investor Limited Partner’s
option, to cause the cure of such default within the cure periods set forth herein, prior to exercising
any remedies under this Agreement. Grantor agrees that the Investor Limited Partner will have
thirty (30) days after the delivery to the Investor Limited Partner of notice of such default to cure,
or, as to non-monetary defaults, such longer period as is reasonably necessary for the Investor
Limited Partner to effect a cure, provided that curative action is commenced within the cure period
and diligently prosecuted. Grantor agrees to accept cure by the Investor Limited Partner as if such
cure were made by Grantee. All notices to Investor Limited Partner shall be sent in accordance
with the procedures for delivering notices set forth herein to the following address or such alternate
or additional contact names and/or addresses of which Grantor is so notified in writing by the
Investor Limited Partner:
c/o RBC Community Investments, LLC
600 Superior Avenue, Suite 2300
Cleveland, Ohio 44114
Attention: President and General Counsel
with a copy to:
Bocarsly Emden Cowan Esmail & Arndt LLP
633 West Fifth Street, 64th Floor
Los Angeles, California 90071
Attention: Kyle Arndt, Esq.
(213) 239-8048
13. Time. Time is of the essence of this Agreement.
14. Counterparts. This Agreement may be executed in counterparts and upon every Party
having executed a counterpart, each signed copy shall have the same force and effect as an original
document and as if the Parties to the counterparts had signed the same document.
15. Binding Agreement. This Agreement shall extend to and bind the representatives,
successors and assigns of the parties hereto.
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16. Severability. If any term or provision of this Agreement or the application of it to any
Party or circumstance shall to any extent be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to Parties or circumstances, other than
those as to which it is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the extent permitted by law.
17. Not a Partnership. The provisions of this Agreement are not intended to create, nor shall
they be in any way interpreted or construed to create, a joint venture, partnership, or any other
similar relationship between the Parties.
18. Captions and Headings. The captions and headings in this Agreement are for reference
only and shall not be deemed to define or limit the scope or intent of any of the terms, covenants,
conditions or agreements contained herein.
19. Exhibits and Recitals. The recitals above, mortgagee consents, and exhibits attached
hereto are incorporated herein and made a part hereof to the full extent as if each were set forth in
its entirety in the body hereof.
20. Interpretation. This Agreement is intended to satisfy the requirements of Internal Revenue
Code Section 42, as amended, and the treasury regulations promulgated thereunder and all
applicable affordable housing requirements, and shall be interpreted consistently therewith. If this
Agreement does not satisfy any such requirement, it shall be retroactively amended in the smallest
amount possible so as to comply with such requirements. The parties agree to make any
adjustments necessary to facilitate such compliance.
21. Estoppel Certificates. From time to time, upon written request of either party or any of
their mortgagees, successors or assigns, each party shall execute and deliver to the requesting party
an estoppel certificate confirming whether there are any defaults under this Agreement and such
other matters as such requesting party shall reasonably request.
22. Choice of Law. This Agreement and all rights and obligations of the parties hereunder
will be governed by and construed and interpreted in accordance with the laws of the State of
California.
23. Insurance. Grantee shall maintain comprehensive broad form general liability insurance
in the amount of $1,000,000 per occurrence and $2,000,000 in the aggregate, covering the Access
Area and shall cause its insurance carrier to name such requesting Party as an additional insured
on its general liability policy and shall provide evidence of such insurance to Grantor. This
provision shall survive the expiration or termination of the Agreement.
24. No Public Dedication. Nothing contained herein shall be deemed to be a gift or dedication
of any portion of the Grantor Land for the benefit of the general public or for any public purposes
whatsoever, it being the intention of the parties hereto that this Agreement shall be strictly limited
to the purposes herein expressed.
[Signatures appear on the following pages.]
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Agreement as of the
day, month and year first above written.
GRANTEE:
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
GRANTOR:
CITY OF MOORPARK,
a California municipal corporation
By:
Name: ______________________________
Title: _______________________________
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STATE OF CALIFORNIA )
COUNTY OF )
On ____________________, before me, ____________________________, a 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.
_______________________________
Notary Public
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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STATE OF CALIFORNIA )
COUNTY OF )
On ____________________, before me, ____________________________, a 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.
_______________________________
Notary Public
(SEAL)
A notary public or other officer completing this certificate verifies only the identity of the
individual who signed the document to which this certificate is attached, and not the
truthfulness, accuracy, or validity of that document.
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EXHIBIT A
LEGAL DESCRIPTION OF GRANTOR LAND
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "B" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED BY DOCUMENT
RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-00125261-0 OF OFFICIAL RECORDS,
BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF PARCEL 1A OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-03 IN THE CITY OF
MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS
DOCUMENT NO. 20050503-0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY
RECORDER OF SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF
SAID COUNTY RECORDER.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE CITY OF MOORPARK BY DEED APRIL
30, 2009 AS INSTRUMENT NO. 20090430-00069389 OF OFFICIAL RECORDS OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION LYING NORTHERLY OF THE FOLLOWING DESCRIBED
LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE ADJUSTMENT NO. 2005-
03, DISTANT THEREON NORTH 292.97 FEET FROM THE SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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: 511-0-020-275
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EXHIBIT B
LEGAL DESCRIPTION OF GRANTEE LAND
Real property in the City of Moorpark, County of Ventura, State of California, described as
follows:
ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF VENTURA,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL "A" AS SHOWN ON LOT LINE OF ADJUSTMENT NO. 2014-1, AS EVIDENCED
BY DOCUMENT RECORDED AUGUST 31, 2016 AS INSTRUMENT NO. 20160831-
00125261-0 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS
FOLLOWS:
ALL OF PARCEL 2B OF IN THAT CERTAIN LOT LINE ADJUSTMENT NO. 2005-04 IN
THE CITY OF MOORPARK, COUNTY OF VENTURA, STATE OF CALIFORNIA,
RECORDED JULY 21, 2005 AS DOCUMENT NO. 20050721-0178764 OR OFFICIAL
RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING A
PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI, AS PER MAP FILED IN BOOK 5,
PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE OFFICE OF SAID COUNTY
RECORDER AND A PORTION OF LOT 4, TRACT NO. 3 AS PER MAP ENTITLED "MAP
OF M.L. WICKS SUBDIVISION OF PART OF TRACT U AND ADDITION TO
MOORPARK, IN THE RANCHO SIMI, VENTURA COUNTY, CALIFORNIA" IN SAID
CITY, COUNTY AND STATE AS SHOWN ON MAP FILED IN BOOK 5, PAGE 37 OF
SAID MISCELLANEOUS RECORDS (MAPS).
TOGETHER WITH THAT PORTION OF PARCEL 1A OF IN THAT CERTAIN LOT LINE
ADJUSTMENT NO. 2005-03 IN THE CITY OF MOORPARK, COUNTY OF VENTURA,
STATE OF CALIFORNIA, RECORDED MAY 3, 2005 AS DOCUMENT NO. 20050503-
0108315 OR OFFICIAL RECORDS IN THE OFFICE OF THE COUNTY RECORDER OF
SAID COUNTY, BEING A PORTION OF LOT "T", TRACT NO. "L", RANCHO SIMI AS
PER MAP FILED IN BOOK 5 PAGE 5 OF MISCELLANEOUS RECORDS (MAPS) IN THE
OFFICE OF SAID COUNTY RECORDER, LYING NORTHERLY OF THE FOLLOWING
DESCRIBED LINE;
BEGINNING AT A POINT IN EAST LINE OF PARCEL 1A OF SAID LOT LINE
ADJUSTMENT NO. 2005-03, DISTANT THEREON NORTH 292.97 FEET FROM THE
SOUTHEASTERLY CORNER THEREOF;
1ST THENCE, DEPARTING SAID EAST LINE SOUTH 89°38'32" WEST 752.05 FEET;
2ND THENCE, SOUTH 27°20'34" WEST 36.75 FEET;
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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.
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.
382
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EXHIBIT C
DESCRIPTION AND DEPICTION OF DETENTION BASIN
AND RETAINING WALL AREAS
[attached]
383
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384
C-15
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385
C-16
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386
C-17
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387
C-18
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388