HomeMy WebLinkAboutAGENDA REPORT 2024 0501 CCSA REG ITEM 11ACITY OF MOORPARK, CALIFORNIA
City Council Meeting
of May 1, 2024
ACTION ADOPTED ORDINANCE NO. 522.
(ROLL CALL VOTE: 4-0,
COUNCILMEMBER MEANS ABSENT)
BY A. Hurtado.
A. Consider Ordinance No. 522 Approving the First Amendment to Development
Agreement No. 2016-01 Between the City of Moorpark and M.P. Group LLC,
Moorpark Homes LLC, and CLP Investment LLC, Allowing the Payment of an In-
Lieu Fee for the Project’s Affordable Housing Obligation, Eliminating The On-Site
Affordable Housing Obligation, and Making Other Adjustments to the Development
Agreement, and Making A Determination Of Exemption Pursuant To The California
Environmental Quality Act in Connection Therewith. Staff Recommendation:
Waive full reading, declare Ordinance No. 522 read for the second time, and
adopted as read. (ROLL CALL VOTE REQUIRED)
Item: 11.A.
ORDINANCE NO. 522
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 2016-01 BETWEEN
THE CITY OF MOORPARK AND M.P. GROUP LLC,
MOORPARK HOMES LLC, AND CLP INVESTMENT LLC,
ALLOWING THE PAYMENT OF AN IN-LIEU FEE FOR THE
PROJECT’S AFFORDABLE HOUSING OBLIGATION,
ELIMINATING THE ON-SITE AFFORDABLE HOUSING
OBLIGATION, AND MAKING OTHER ADJUSTMENTS TO
THE DEVELOPMENT AGREEMENT, AND MAKING A
DETERMINATION OF EXEMPTION PURSUANT TO THE
CALIFORNIA ENVIRONMENTAL QUALITY ACT IN
CONNECTION THEREWITH
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, on April 15, 2016, M.P. Group LLC, Moorpark Homes, LLC and CLP
Investment LLC, (“Owners”) known collectively as Pacific Communities (“Applicant”),
applied to the City for entitlements to build a residential project including 284 residential
dwelling units on the properties located on Los Angeles Avenue and Leta Yancy Road
(APNs 506-0-030-180, 506-0-030-195, 506-0-050-525, 506-0-050-515, 506-0-030-205,
506-0-030-255, and 506-0-030-245) (“Project Site”) in the City of Moorpark (the “City”)
(the “Project”); and
WHEREAS, on August 22, 2017, the Planning Commission adopted Resolution
No. PC-2017-620, recommending the City Council determine the Project consistent with
the General Plan per Government Code 65402, adopt the Project Mitigated Negative
Declaration (“MND”) and approve General Plan Amendment No. 2016-01, Zone Change
No. 2016-01, Residential Planned Development (“RPD”) No. 2016-01, Vesting Tentative
Tract Map (“VTTM”) No. 5882, and Development Agreement No. 2016-01 (“DA”); and
WHEREAS, on September 20, 2017, the City Council adopted Resolution Nos.
2017-3626 and 2017-3627, adopting a MND and Mitigation Monitoring and Reporting
Program (MMRP) for the Project, approving General Plan Amendment No. 2016-01, Zone
Change No. 2016-01, RPD No. 2016-01, and Vesting Tentative Tract Map No. 5882, for
a residential development consisting of 284 residential units and associated land
improvements located on 38.73 acres of land located on the south side of Los Angeles
Avenue and the west side of Leta Yancy Road on an application of the Applicant, and
finding the Project consistent with the General Plan per Government Code 65402; and
Item: 11.A.
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Ordinance No. 522
Page 2
WHEREAS, on October 4, 2017, the City Council adopted Ordinance No. 453
approving Zone Change No. 2016-01 to change the zoning on the Project Site from
Commercial Planned Development, RPD-7U, and RPD-7.5U to RPD-9U, RPD-20U, and
Open Space, and adopted Ordinance No. 454, approving DA No. 2016-01; and
WHEREAS, on September 20, 2017, the City Council adopted Resolution No.
2017-3627 approving Residential Planned Development Permit No. 2016-01 and
associated Conditions of Approval; and
WHEREAS, on October 4, 2017, the DA was executed by the City of Moorpark
and the Owners, and the DA was recorded on October 10, 2017, by Instrument No.
20171011-00132051-0; and
WHEREAS, on April 13, 2023, the Applicant applied for the First Amendment to
the DA (“Exhibit A”) and Amendments to the Conditions of Approval for Residential
Planned Development Permit No. 2016-01 and has agreed to the terms as outlined in the
First Amendment to the DA and amendments to the Conditions of Approval for Residential
Planned Development Permit No. 2016-01 to address phasing of the final map and
changes to the affordable housing requirement for the Project; and
WHEREAS, on March 19, 2024, the Planning Commission adopted Resolution No.
PC-2024-705 recommending that the City Council approve the First Amendment to DA
No. 2016-01; and
WHEREAS, at a duly noticed public hearing on April 17, 2024, the City Council
considered the First Amendment to the DA, and public testimony related thereto; and
WHEREAS, the City Council has considered all points of public testimony relevant
to the First Amendment to the DA and has given careful consideration to the content of
the First 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. 2016-01.
Therefore, no further environmental documentation is required.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK,
DOES ORDAIN AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTATION: The City Council concurs
with the Community Development Director that the First Amendment to the DA is
consistent with the Mitigated Negative Declaration adopted for Residential Planned
Development Permit No. 2016-01.
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Ordinance No. 522
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SECTION 2. The City Council of the City of Moorpark does hereby find as follows:
A.The provisions of the First Amendment to the Development Agreement are
consistent with the General Plan land use designation, help achieve the
goals of the Land Use Element and Housing Element and are consistent
with the goals and policies of all other elements. The development of a
residential project in accordance with the General Plan achieves a well-
balanced and diversified economy and provides a variety of housing
options. In addition, further analysis was conducted to ensure that the
payment of an affordable housing in-lieu fee of $4,186,000 instead of the
construction of 25 low-income housing units remains consistent with the
Housing Element. The City’s RHNA for the 2021-2029 planning period is
1,289 total units (610 lower, 245 moderate, and 434 above moderate). The
City’s 2021-2029 Housing Element identified capacity for 2,491 total units
(653 lower, 297 moderate, and 1,541 above moderate). Thus far in the
2021-2029 planning period, the City has approved entitlements for 19
accessory dwelling units at the lower income level. Approving the First
Amendment to the Development Agreement would reduce the total number
of units that can be accommodated on sites identified in the site inventory
within the lower income category from 654 units to 629 units. However, this
would retain a buffer of 19 lower income units beyond the original required
RHNA allocation for the lower income category. The First Amendment also
would result in an increase in the total number of above moderate-income
units from 1,541 units to 1,566 units, where only 434 units were required to
be identified originally. Due to the remaining buffer of 19 lower income units,
and the fact that 19 lower income ADUs have been approved already, the
proposed action would not result in a reduction of identified units below the
required RHNA allocation. As required by Government Code Section
65863, the above analysis provides evidence that even with the approval of
the First Amendment and the revised Project, the remaining sites identified
in the housing element are adequate to accommodate the City’s RHNA
allocation at all income levels.
B.The provisions of the First Amendment to the Development Agreement are
consistent with this Chapter 15.40 of the Moorpark Municipal Code because
the Development Agreement contains the elements required by Section
15.40.030 and has been processed through a duly noticed public hearing,
as required by law.
SECTION 3. The City Council hereby adopts the First Amendment to the DA
attached hereto and incorporated herein (Exhibit A) between the City of Moorpark, a
municipal corporation, and M.P. Group LLC, Moorpark Homes LLC and CLP Investment
LLC 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.
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Ordinance No. 522
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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 1st day of May, 2024.
Chris R. Enegren, Mayor
ATTEST:
Ky Spangler, City Clerk
Exhibit A – First Amendment to Development Agreement
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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 Government Code
§ 6103
FIRST AMENDMENT TO DEVELOPMENT AGREEMENT
by and between the
CITY OF MOORPARK
and
M.P. Group, LLC (Pacific Communities),
MOORPARK HOMES, LLC AND
CLP INVESTMENT, LLC
Exhibit A
Ordinance No. 522
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FIRST AMENDMENT
TO DEVELOPMENT AGREEMENT
This FIRST AMENDMENT TO DEVELOPMENT AGREEMENT the ("First
Amendment") is made and entered into on ____________________, 2024 by and
between the CITY OF MOORPARK, a municipal corporation (referred to hereinafter as
"City"), MP Group, LLC. a California limited liability company (“MP Group”), MOORPARK
HOMES, LLC. a California limited liability company (“Moorpark Homes”) and CLP
INVESTMENT, LLC. a California limited liability company (“CLP”), the owners of real
property within the City of Moorpark generally referred to as Residential Planned
Development Permit 2016-01 (referred to hereinafter individually as "Developer"). City
and Developer are referred to hereinafter collectively as a "Party" and collectively as the
"Parties." In consideration of the mutual covenants and agreements contained in this
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:
1.1 MP Group is the owner in fee simple of certain real property in the City of
Moorpark identified as Parcel 1 (“Parcel 1”) in the legal description set forth
in Exhibit “A” which exhibit is attached hereto and incorporated by
reference. Moorpark Homes is the owner in fee simple of certain real
property in the City of Moorpark identified as Parcel 2 (“Parcel 2”) in
Exhibit “A”. CLP is the owner in fee simple of certain real property in the
City of Moorpark identified as Parcel 3 (“Parcel 3”) in Exhibit “A” and that
certain real property referred to herein as the “City Site” and more
particularly described in Exhibit “B” attached hereto and incorporated by
reference. Parels 1, 2, and 3 are referred to hereinafter collectively as the
“Property”;
1.2 Developer and City entered into a Development Agreement for Vesting
Tentative Tract Map No. 5882 on October 4, 2017, which was recorded on
October 11, 2017, as Instrument Number 20171011-00132051-01/45 in the
Official Records of Ventura County, California ("Development Agreement")
with respect to the Property and in connection with the development of 153
small lot single-family homes, 131 detached condominium homes, a 21,816
square foot recreation center, a 23,668 square foot linear park, associated
roadways and infrastructure, detention basins and other improvements on
the approximate 38.52 acre site (“Project”); and
1.3 Sections 6.13 and 6.14 of the Development Agreement obligate Developer
to provide (i) twenty-five (25) dwelling units to be sold to buyers who meet
the criteria of low-income (80% of median income); and (ii) a 1.6 acre parcel
of land (“City Site”) to satisfy the requirement to provide units for buyers who
meet the criteria of very low-income (50% of median income); and
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1.4 Section 6.13 of the Development Agreement also provides that prior to
recordation of the first final Tract Map for Tract 5882, the City Council must
approve an Affordable Housing Agreement and a Purchase and Sale
Agreement, that are consistent with the Development Agreement, in order
to provide for the sale of the twenty-five (25) dwelling units to qualified low-
income buyers and the conveyance of the City Site to the City; and
1.5 On or about December 19, 2019, Developer and the City entered into that
certain Affordable Housing Agreement (“AHA”), which was recorded against
the Property on December 26, 2019, as Instrument No. 20191226-00164341-
01/24. Pursuant to that AHA, Developer agreed to comply with a series of
requirements for the construction and sale of 25 affordable units; and
1.6 In 2023, Developer prepared an updated financial feasibility analysis of the
affordable housing obligations in the Development Agreement and the
Affordable Housing Agreement and has asserted that, with those
obligations, the Project is not financially feasible. Accordingly, the
Developer has requested that the Developer be relieved of the requirement
to construct 25 units of affordable housing and instead pay an affordable
housing in-lieu fee of $4,186,000 (the “In-Lieu Fee”). The City has
considered Developer’s request and retained an independent financial
consultant to advise the City on the request; and
1.7 Developer and City now mutually desire to amend the Development
Agreement to remove the requirement for the Developer to construct
twenty -five (25) dwelling units to be sold to buyers who meet the criteria
of low-income (80% of median income) and replace it with the
requirement for the Developer t o pay the City the I n-Lieu Fee while at the
same time retaining the provision in the Development Agreement that
Developer convey to the City a 1.6 acre City Site parcel to satisfy the
requirement to provide units for buyers who meet the criteria of very -low-
income (50% of median income ); and
1.8 With the payment of the In-Lieu Fee pursuant to this First Amemdment, the
AHA is no longer needed and may be terminated ; and
1.9 On April 25, 2023, the Developer applied for the First Amendment to request
changes to the affordable housing requirement outlined in the original
Agreement, which resulted in the removal of the requirement to construct
25 low-income for-sale units and replacement with the required payment of
an affordable housing in-lieu fee; and
1.10 On March 19, 2024, the Planning Commission commenced a duly noticed
public hearing on the First Amendment, and at the conclusion of the hearing
on March 19, 2024, recommended approval of this Agreement.
1.11 On April 17, 2024, the City Council commenced a duly noticed public
hearing on the First Amendment, and following the conclusion of the hearing
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closed the hearing and approved the First Amendment, incorporated herein,
by adoption of Ordinance No. 522 (“Enabling Ordinance”) on May 1, 2024.
2.Section 3.2 (Release Upon Subsequent Transfer) is hereby amended to read as
follows:
3.2 “Release Upon Subsequent Transfer. Upon the conveyance of Developer’s
interest in the Property or any portion thereof by Developer or its
successor(s) in interest, the transferor shall be released from its obligations
hereunder arising after the conveyance with respect to the portion of
Property conveyed as of the effective date of the conveyance, provided that
the transferee expressly assumes all obligations of the transferred portion
of the Property and a copy of the executed assignment and assumption
agreement is delivered to the City prior to the conveyance. Failure to
provide a written assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the transferee pursuant to this Agreement.
Nothing contained herein shall be deemed to grant to City discretion to
approve or deny any such conveyance. Notwithstanding the foregoing, this
Agreement shall not be binding upon the transferee of a Completed Unit
with respect to the transferee’s interest in such Completed Unit, and the
rights and obligations of Developer under this Agreement shall not run with
the portion of the Property that is conveyed with the Completed Unit after
such conveyance of the Completed Unit by Developer or its successor in
interest. For purposes of this Agreement, “Completed Unit” means a
completed residential unit within the Property for which the City has issued
a certificate of occupancy or final inspection.”
3.Section 6.12 (Landscape Maintenance Assessment District (LMD)) is hereby
amended to read as follows:
6.12 Community Facility District (CFD). Prior to issuance of a Zoning Clearance
for the first building permit or the approval of the first phased final ma p for
the Project: Developer shall pay the City a Fifty Thousand Dollar ($50,000)
CFD Formation Deposit. The District shall be for the purposes of funding
future costs for the maintenance of landscaping and irrigation of the
landscaped area and related improvements including but not limited to block
walls and hardscape adjacent to Los Angeles Avenue, Leta Yancy Road
and the southern boundaries of the Project. The City shall administer the
annual renewal of the CFD, and any costs related to such administrati on
shall be charged to the fund established for such CFD revenues and
expenses. Developer agrees to cast affirmative ballots for the establishment
of the CFD, 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
increases. In the event that any such Assessment District has insufficient
funds for its purposes, then Developer shall pay the funds required to t he
CFD within five (5) business days after written demand from the CFD from
time to time.
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Developer shall be responsible for all CFD costs until acceptance of the
CFD by the City. Developer acknowledges and agrees that the CFD will not
be accepted by City until after the final occupancy or final inspection is
approved for the last residential dwelling unit in the Project and Developer
has made all required CFD improvements in a manner that are acceptable
to City's Parks and Recreation Director and Developer has provided City
with a deposit for the next subsequent twelve ( 12) months of CFD
maintenance costs.
Prior to approval of the first phased final map for the Project, the City Council
at its sole discretion may determine that all or a part of the improvements
planned to be included in the CFD may instead be placed in the
Homeowners' Association for the Project.
4.Section 6.13 (Densities Allowed for Development and Affordable Housing Fee) is
hereby amended to read as follows:
6.13 “Affordable Housing Fee.
(a)Developer 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;
Developer shall not be entitled to further density bonuses or
incentives or concessions and further agrees, in consideration for the
density bonus obtained through the Project Approvals that is greater
than would otherwise be available.
(b)The Developer agrees to pay an in-lieu fee for the community benefit
of Affordable Housing (“Affordable Housing Fee”) prior to the
issuance of the first building permit for a residential unit. The
Affordable Housing Fee may be expended by the City in an effort to
further fair housing. The amount of the Affordable Housing Fee shall
be a flat fee of Four Million One Hundred and Eighty Six Thousand
Dollars ($4,186,000.00), in-lieu of providing twenty-five (25)
residential units for low-income households. If the Affordable
Housing Fee is unpaid as of January 1, 2025, then on such date and
annually thereafter, the Affordable Housing Fee shall be adjusted by
any increase in the CPI until the Affordable Housing Fee has been
paid. The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for All Urban Consumers within the Los Angeles/Long
Beach/Anaheim metropolitan area during the prior year. The
calculation shall be made using the month of January over the month
of January from the prior year or in the event there is a decrease in
the CPI for any annual indexing, the Affordable Housing Fee shall
remain at its then current amount until such time as the next
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subsequent annual January indexing which results in an increase.
By paying the Affordable Housing Fee, the Developer shall have met
its Affordable Housing obligations.
(c) Concurrently with and subject to the City's payment to CLP of the
Purchase Price for the City Site pursuant to Subsection 6.14 and the
Purchase and Sale Agreement (as those terms are defined in
Subsection 6.14, Developer shall pay City a one-time fee in the
amount of One Million Five Hundred Thousand Dollars
($1,500,000.00) or the appraised fair market value of the City Site,
as defined in Subsection 6.14, whichever is less, in-lieu of providing
seventeen (17) residential units for very-low income households.”
5. Section 6.14(b) is hereby amended to read as follows:
6.14 (b) CLP shall execute and deliver the Purchase and Sale Agreement for
the City Site prior to approval of the Final Map Phase 1 and Final Map
Phase 4 for the Project provided, however, that the Final Approval of the
Project Approvals and this Agreement shall be conditions precedent to the
effectiveness of the Purchase and Sale Agreement. The close of escrow
under the Purchase and Sale Agreement shall occur after the City's final
approval of all items required in 6. 14(e), below. For the purposes of this
Agreement, " Final Approval" means when all of the following have
occurred: (i) the City shall have approved the Project Approval and this
Agreement; and (ii) the time periods forfiling any appeal from or legal
challenge to the Project Approvals and this Agreement shall have expired
without an appeal or legal challenge (including, without limitation, any
CEQA challenge) having been filed; or, if an appeal or other legal challenge
shall have been filed, all such appeals or legal challenges shall have been
subsequently terminated with the approval of the Project Approvals and this
Agreement upheld, and the time period(s) for filing any appeal( s) from the
upheld decision( s) shall have expired without further appeals having been
filed.
6. Section 6.20 (CPI Indexes) is hereby amended to read as follows:
6.20 “CPI Indexes. In the event the “CPI” referred to in Sections 6.3, 6.6, 6.7,
6.8, 6.13, and 6.14 (l), or the Bid Price Index referred to in Section 6.4, 6.7,
and 6.26 are discontinued or revised, a successor index with which the
“CPI” and or Bid Price Index are replaced shall be used in order to obtain
substantially the same result as would otherwise have been obtained if
either or both the “CPI” and Bid Price Index had not been discontinued or
revised.”
7. Section 6.21 (Proposed Mello-Roos Community Facilities District) is hereby
amended to read as follows:
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6.21 “Proposed Mello-Roos Community Facilities District. Developer agrees that
if a Mello-Roos Community Facilities District (CFD) is formed consistent
with Section 7.3 of this Agreement, Developer shall submit the required
deposit and reimbursement agreement to fund all City costs associated with
the proposed CFD formation. Developer also agrees that the City Council
upon the conclusion of the public hearing required by applicable law and in
its sole and unfettered discretion may abandon establishment of the CFD.
Developer agrees that any CFD bond proceeds in the Project Improvement
Fund in excess of the amount required to fund authorized costs, including
any City and CFD consultant costs associated with the redemption of bonds
shall be applied to redeem a portion of the bonds, consistent with applicable
provisions of State and Federal laws and regulations.
Developer also agrees that if a CFD is authorized, the CFD may include on-
going annual special taxes for services provided to the Project.
Developer further acknowledges and agrees that the City Council shall
determine the total amount of CFD bonds to be sold and the amount
Developer may receive as reimbursement from the CFD bonds proceeds.
If a CFD is authorized and formed, Developer shall include a disclosure to
the initial third party buyer of each residential dwelling unit in the Project.
The form and language of the disclosure shall be approved by the City
Attorney and Community Development Director and shall conform to all
requirements of the applicable State agencies pertaining to real estate
disclosure.”
8.Section 6.25 (Homeowners Association) is hereby amended to read as follows:
6.25 Homeowners Association. Prior to recordation of the Final Map Phase 1 and
Final Map Phase 4 for the Property, if required by City at its sole discretion,
Developer shall form one or more property owner associations to assume
ownership and maintenance of private recreation, private streets, parking
lots, landscape areas, flood control and NPDES facilities and other
amenities within the Project. The obligation of said Homeowners
Associations shall be more specifically defined in the conditions of approval
of the first tentative tract or parcel map for the property.
9.Section 6.26 (Los Angeles Avenue Improvements) is hereby amended to read as
follows:
6.26 Los Angeles Avenue Improvements. Developer agrees to pay City two million
fifteen thousand one hundred fourteen dollars ($2,015,114.00) to reimburse
City for the cost of the improvements to Los Angeles Avenue along the frontage
of the Project less one hundred thousand dollars ($100,000.00) previously paid
by Developer to City for improvements to Los Angeles Avenue. The net
payment to City of one million nine hundred fifteen thousand one hundred
fourteen dollars ($1,915,114.00) shall be referred to as the Los Angeles
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Avenue Reimbursement Payment which shall be paid in the amount of six
thousand seven hundred forty-four dollars ($6,744.00), hereinafter referred to
as Reimbursement Fee prior to the issuance of a building permit for each
residential dwelling unit in the Project.
The Reimbursement Fee shall be adjusted annually commencing January 1,
2019 and annually thereafter by the change in the Caltrans Highway Bid Price
Index (Bid Price Index) for Selected California Construction Items for the twelve
(12) month period available on December 31 of the preceding year (“annual
indexing”) in the event there is a decrease in the Bid Price Index for any annual
indexing the current amount of the fee shall remain until such time as the next
subsequent annual indexing which results in an increase. Notwithstanding the
foregoing provision of this Subsection 6.26, in the event a CFD as described in
Subsections 6.21 and 7.3 of this Agreement is formed and bonds sold,
Developer shall cooperate in good faith with the City to facilitate payment of the
Los Angeles Reimbursement Payment from the proceeds of the CFD. In the
event the CFD cannot issue tax-exempt bonds (i.e., the bonds would need to
be issued as taxable bonds) to finance the Los Angeles Avenue
Reimbursement Payment, City may, at its option, elect to issue tax exempt
bonds to provide for payment of other City capital improvements authorized to
be financed by the CFD, and upon issuance of such bonds payment of the Los
Angeles Avenue Reimbursement Payment shall be deemed satisfied if and to
the extent net proceeds of the bonds available to the City are in an amount
sufficient to provide for payment of the obligation.
10.Section 7.11 (Affordable Housing) is hereby removed from the DA.
11.Section 11.4 (Remedies for Breach) is hereby amended to read as follows:
11.4 “Remedies for Breach. The Parties acknowledge that remedies at
law,including without limitation money damages, would be inadequate for
breach of this Agreement by any Party due to the size, nature and scope of
the Project. The Parties also acknowledge that it would not be fea sible of
possible to restore the Property to its natural condition once implementation
of the Agreement has begun. Therefore, the Parties agree that the remedies
for breach of this Agreement shall be limited to the remedies expressly set
forth in this subsection.
The remedies for breach of the Agreement by the City shall be injunctive
relief and/or specific performance.
The remedies for breach of the Agreement by the Developer shall be
injunctive relief and/or specific performance. In addition, and
notwithstanding any other language of this Agreement, if the breach is of
Subsection 6.13 or 6.14 of this Agreement, City shall have the right to
withhold the issuance of building permits from the date that the notice of
violation was given pursuant to Subsection 11.3 hereof until the date that
the breach is cured as provided in the notice of violation.
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Nothing in this subsection shall be deemed to preclude City from
prosecuting a criminal action against Developer if it violates any City
ordinance or State statute.
No delay or omission to exercise any remedy upon the occurrence of any
default hereunder shall impair any such remedy or shall be construed to be
a waiver thereof, but any such right and power may be exercised from time
to time and as often as may be deemed expedient a Party.
Notwithstanding the previous provisions of the Section, Developer shall not
be entitled to monetary damages for breach of this Agreement by City or
consequential damages incurred that are the result of that breach. In
addition, in the event this Agreement is terminated by City pursuant to the
provisions of Chapter 15.40 of the Moorpark Municipal Code, and such
termination is found invalid or unenforceable by a court of competent
jurisdiction, Developer shall not be entitled to monetary damages for the
termination or consequential damages incurred that are the result of the
termination.”
12.Operative Date. As described in Section 1.5 above, this First Amendment shall
become operative on the Operative Date of the First Amendment, being the date
the Enabling Ordinance becomes effective pursuant to Government Code Section
36937.
13.Entire Agreement. This First Amendment Agreement, together with the
Agreement, and those exhibits and documents referenced herein contain the entire
agreement between the Parties regarding the subject matter hereof, and all prior
agreements or understandings, oral or written, are hereby merged herein. This
Agreement shall not be amended, except as expressly provided herein.
14.Severability. If any provision of this First Amendment is determined by a court of
competent jurisdiction to be invalid or unenforceable, the remainder of this
Agreement shall be effective to the extent the remaining provisions are not
rendered impractical to perform, taking into consideration the purposes of this
Agreement.
15.Recordation of First Amendment. This First Agreement shall be recorded with the
County Recorder of the County of Ventura by the City Clerk of City within the period
required by Chapter 15.40 of the Moorpark Municipal Code of City or any
successor thereof then in effect.
16.Counterparts. This agreement may be executed in counterparts and upon every
Party 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.
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17.Authority to Execute. Developer warrants and represents that to its knowledge as
of the Operative Date of this First Amendment and with respect to each entity that
is defined as Developer: (i) it is duly organized and existing; (ii) it is duly authorized
to execute and deliver this Agreement; (iii) by so executing this Agreement,
Developer is formally bound to the provisions of this Agreement; (iv) Developer's
entering into and performance of its obligations set forth in this Agreement do not
violate any provision of any other agreement to which Developer is bound; and
(v)there is no existing or threatened litigation or legal proceeding of which
Developer is aware that could prevent Developer from entering into or performing
its obligations set forth in this First Amendment and the Agreement.
IN WITNESS WHEREOF, the Parties have executed this First Amendment to the
Development Agreement effective as of the Operative Date of the First Amendment.
CITY OF MOORPARK
__________________________
Chris R. Enegren, Mayor
ATTEST:
__________________________
Ky Spangler, City Clerk
MP GROUP, LLC
a California limited liability company
By: Pacific Housing, LLC, Manager
By: __________________________
Christine Chung, Manager
MOORPARK HOMES, LLC
a California limited liability company
By: Pacific Communities Builder, Inc., Manager
By: __________________________
Nelson Chung, President
CLP INVESTMENT, LLC
a California limited liability company
By: __________________________
Christine Chung, Manager
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EXHIBIT “B”
LEGAL DESCRIPTION WITHIN
LOT " K" TRACT L, RANCHO SIMI PER 5MR5
That portion of Parcel "C" of that certain "Notice of Approval for Lot Line Adjustment"
No.99-1, in the City of Moorpark, County of Ventura, State of California, recorded as
Document No. 1999- 0221273-00 of Official Records, being a portion of Lot "K", Tract
"L", Rancho Simi as per map filed in Book 5, Page 5 of Miscellaneous Records (Maps),
All in the Office of the County Recorder of said County more particularly described as
follows:
BEGINNING at the southeast comer of said Parcel "C" being a point of intersection
with the south line of said Lot "K" and the west line of Leta Yancy Road (formerly
Liberty Bell Road, 40 feet wide) as shown on the Map of Tract No. 4147 filed in Book
112, Page 7 of Miscellaneous Records (Maps) of said County;
1ST Thence, along said west line of Leta Yancy Road, North 0°27'05"East 509.24
feet to a point of intersection with the west line of the land described in the deed
recorded May 4, 1993 as Document No. 93-079362 of Official Records;
2nd Thence, along the west line of said deed, North 4°07'20"West 13.55 feet to a
point of intersection with a line which is parallel with and 490.94 feet south of the north
line of Lot "K", said north line also being the centerline of Los Angeles Avenue;
3rd Thence, along said parallel line North 89°32'10"West 178.78 feet;
4th Thence, at right angles South 0°27'50"West 442.62 feet to the intersection with
the south line of said Lot "K";
5th Thence, along said south line of Lot "K", South 65°32'07"East 197.01 to the POINT
OF BEGINNING.
CONTAINING: 1.993 Acres, more or less.
SUBJECT TO: All covenants, Rights, Rights-of-Way and Easements of record.
EXHIBIT "B": Attached and by this reference made a part hereof.
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EXHIBIT “C”
ADDRESSESS OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Pacific Communities
1000 Dove Street, Suite 300
Newport Beach, CA 92660
Attn: Nelson Chung
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