HomeMy WebLinkAboutORD 313 2005 0420ORDINANCE NO. 313
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF MOORPARK AND SHEA
HOMES, LIMITED PARTNERSHIP
WHEREAS, the Planning Commission of the City of Moorpark on
March 22, 2005, did adopt Resolution No. PC 2005 -472
recommending to the City Council approval of Development
Agreement No. 2003 -01, submitted by Shea Homes, Limited
Partnership; and
WHEREAS, at a duly noticed hearing on April 6, 2005, the
City Council considered Development Agreement No. 2003 -01; and
WHEREAS, the City Council on April 6, 2005, adopted the
Mitigated Negative Declaration for the Shea Homes project
consisting of General Plan Amendment No. 2003 -02, Zone Change
2003 -02, Vesting Tentative Tract Map 5425, Residential Planned
Development No. 2003 -02, and Development Agreement No. 2003 -01,
as having been completed in accordance with the California
Environmental Quality Act (CEQA), the CEQA Guidelines, and the
City's CEQA procedures; and
WHEREAS, the City Council, after review and consideration
of the information contained in the City Council staff reports
and public testimony, has made a decision on this matter.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Moorpark does
hereby find as follows:
a. The Development
General Plan as
2003 -02.
b. The Development
agreement places
the intent and
Declaration.
Agreement is consistent with the
amended by General Plan Amendment No.
Agreement and assurances that said
upon the project are consistent with
provisions of the Mitigated Negative
C. The Development Agreement is necessary to insure the
public health, safety and welfare.
SECTION 2. The City Council hereby adopts Development
Agreement No. 2003 -01 (attached hereto) between the City of
Ordinance No. 313
Page 2
Moorpark, a municipal corporation, and Shea Homes, Limited
Partnership; and the City Clerk is hereby directed to cause one
copy of the signed, adopted agreement to be recorded with the
County Recorder no later than ten (10) days after the City
enters into the development agreement pursuant to the
requirements of Government Code Section 65868.5.
SECTION 3. That 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
sections, subsections, sentences, clauses, phrases, parts or
portions be declared invalid or unconstitutional.
SECTION 4. This Ordinance shall become effective thirty
(30) days after its passage and adoption.
SECTION 5. 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 minute order of
the passage and adoption thereof in the records of the
proceedings of the City Council at which the same is passed and
adopted; and shall, within fifteen (15) days after the passage
and adoption thereof, cause the same to be published once in the
Moorpark Star, a newspaper of general circulation, as defined in
Section 6008 of the Government �that the City of Moorpark,
and which is hereby designated orpose.
PASSED AND ADOPTED thi.7 20th day of /April, /2WA.
rick Hunt ayor
ATTEST:
Deborah S. Traffen edt, City Clerk
ATTACHMENT: Development Agreement No. 2003 -01
Ordinance No. 313
Page 3
ATTACHMENT
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
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
SHEA HOMES, LIMITED PARTNERSHIP
Ordinance No. 313
Page 4
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into on May 23, 2005, by and between the CITY OF
MOORPARK, a municipal corporation, (referred to hereinafter as
"City ") and Shea Homes, Limited Partnership, the owner of real
property within the City of Moorpark generally referred to as
Vesting Tentative Tract Map 5425 (referred to hereinafter
individually as "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 Agreement, City and Developer agree
as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of
which is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code Section 65864 et seq.
and Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or
equitable interest in real property within its
boundaries for the development of such property in
order to establish certainty in the development
process.
1.2. Prior to approval of this Agreement, but after the
approval of the Mitigated Negative Declaration
(MND), Mitigation Measures, and Mitigation
Monitoring and Reporting Program ( "the MMRP ") for
the Project Approvals as defined in subsection 1.3
of this Agreement, the City Council of City ( "the
City Council ") approved General Plan Amendment No.
2003 -02 ( "GPA 2003 -02 "), for approximately 14.8
acres of land within the City ( "the Property "), as
more specifically described in Exhibit "A" attached
hereto and incorporated herein, and changed the
zoning of the Property pursuant to Zone Change No.
2003 -02 ( "ZC 2003 -02 ").
Ordinance No. 313
Page 5
1.3. GPA 2003 -02, ZC 2003 -02, Vesting Tentative Tract Map
5425 (Tract 5425) and Residential Planned
Development Permit No. 2003 -02 (RPD 2003 -02)
[collectively "the Project Approvals "; individually
"a Project Approval "] provide for the development of
the Property and the construction of certain off -
site improvements in connection therewith ( "the
Project").
1.4. By this Agreement, City desires to obtain the
binding agreement of Developer to develop the
Property in accordance with the Project Approvals
and this Agreement. In consideration thereof, City
agrees to limit the future exercise of certain of
its governmental and proprietary powers to the
extent specified in this Agreement.
1.5. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development
of the Property in accordance with the Project
Approvals and this Agreement. Developer anticipates
developing the Property over a minimum of three (3)
years. In consideration thereof, Developer agrees
to waive its rights to legally challenge the
limitations and conditions imposed upon the
development of the Property pursuant to the Project
Approvals and this Agreement and to provide the
public benefits and improvements specified in this
Agreement.
1.6. City and Developer acknowledge and agree that the
consideration that is to be exchanged pursuant to
this Agreement is fair, just and reasonable and that
this Agreement is consistent with the General Plan
of City, as amended by GPA 2003 -02.
1.7. On March 22, 2005, the Planning Commission of City
commenced a duly noticed public hearing on this
Agreement, and at the conclusion of the hearing on
March 22, 2005 recommended approval of the
Agreement.
1.8. On April 6, 2005, the City Council commenced a duly
noticed public hearing on this Agreement, and
following the conclusion of the hearing approved the
Ordinance No. 313
Page 6
Agreement by adoption of Ordinance No. 313 ( "the
Enabling Ordinance ") on April 20, 2005.
2. Property Subject To This Agreement. All of the Property
shall be subject to this Agreement. The Property may also
be referred to hereinafter as "the site" or "the Project ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each
Party and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever
the terms "City" and "Developer" are used herein, such
terms shall include every successive successor in interest
thereto, except that the term "Developer" shall not include
the purchaser or transferee of any lot within the Project
that has been fully developed in accordance with the
Project Approvals and this Agreement.
3.1. Constructive Notice and Acceptance. Every person
who acquires any right, title or interest in or to
any portion of the Property except any lot within
the Project that has been fully developed in
accordance with the Project Approvals and this
Agreement shall be, conclusively deemed to have
consented and agreed to be bound by this Agreement,
whether or not any reference to the Agreement is
contained in the instrument by which such person
acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
any of Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
transferred subsequent to the operative date of the
sale or transfer, provided that the Developer (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 a written assumption
agreement, duly executed by the purchaser or
transferee and notarized by a notary public, whereby
the purchaser or transferee expressly assumes the
obligations of Developer under this Agreement with
respect to the sold or transferred portion of the
Property. Failure to provide a written assumption
agreement hereunder shall not negate, modify or
otherwise affect the liability of the purchaser or
Ordinance No. 313
Page 7
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 expressly provided in
this Agreement.
3.3 In the event of a partial assignment or transfer,
the assumption agreement referenced in subsection
3.2 shall include provisions acceptable to the City
to ensure that the phased construction of affordable
housing units contemplated by Section 6.9 is
achieved, regardless of the identity or number of
developers of the Project.
4. Development of the Property. The following provisions
shall govern the subdivision, development and use of the
Property.
4.1. Permitted Uses. The permitted and conditionally
permitted uses of the Property shall be limited to
those that are allowed by the Project Approvals and
this Agreement.
4.2. Development Standards. All design and development
standards, including but not limited to density or
intensity of use and maximum height and size of
buildings, that shall be applicable to the Property
are set forth in the Project Approvals and this
Agreement.
4.3. Building Standards. All construction on the
Property shall adhere to the Uniform Building Code,
including the Fire Resistive Design Manual, the
National Electrical Code, the Uniform Plumbing Code,
the Uniform Mechanical Code, the Uniform Housing
Code, the Uniform Code for the Abatement of
Dangerous Buildings, the Uniform Code for Building
Conservation and the Uniform Administrative Code in
effect at the time the plan check or building permit
is approved and to any federal or state building
requirements that are then in effect (collectively
"the Building Codes ").
4.4. Reservations and Dedications. All reservations and
dedications of land for public purposes that are
Ordinance No. 313
Page 8
applicable to the Property are set forth in the
Project Approvals and this Agreement.
5. Vestina of Development Riahts.
5.1. Timing of Development. In Pardee Construction Co.
V. City of Camarillo, 37 Cal.3d 465 (1984), the
California Supreme Court held that the failure of
the parties therein to provide for the timing or
rate of development resulted in a later - adopted
initiative restricting the rate of development to
prevail against the parties' agreement. City and
Developer intend to avoid the result in Pardee by
acknowledging and providing that Developer shall
have the right, without obligation, to develop the
Property in such order and at such rate and times as
Developer deems appropriate within the exercise of
its subjective business judgment.
In furtherance of the Parties intent, as set forth
in this subsection, no future amendment of any
existing City ordinance or resolution, or future
adoption of any ordinance, resolution or other
action, that purports to limit the rate or timing of
development over time or alter the sequencing of
development phases, whether adopted or imposed by
the City Council or through the initiative or
referendum process, shall apply to the Property
provided the Property is developed in accordance
with the Project Approvals and this Agreement.
Nothing in this subsection shall be construed to
limit City's right to insure that Developer timely
provides all infrastructure required by the Project
Approvals, Subsequent Approvals, and this Agreement.
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 apply 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 approvals, entitlements and permits,
including without limitation subdivision maps (e.g.
tentative, vesting tentative, parcel, vesting
Ordinance No. 313
Page 9
parcel, and final maps), subdivision improvement
agreements and other agreements relating to the
Project, lot line adjustments, preliminary and final
planned development permits, use permits, design
review approvals (e.g. site plans, architectural
plans and landscaping plans) , encroachment permits,
and sewer and water connections that are necessary
to or desirable for the development of the Project
(collectively "the Subsequent Approvals ";
individually "a Subsequent Approval ") shall be
consistent with the Project Approvals and this
Agreement. For purposes of this Agreement,
Subsequent Approvals do not include building
permits.
Subsequent Approvals shall be governed by the
Project Approvals and by the applicable provisions
of the Moorpark General Plan, the Moorpark Municipal
Code and other City ordinances, resolutions, rules,
regulations, policies, standards and requirements as
most recently adopted or approved by the City
Council or through the initiative or referendum
process and in effect at the time that the
application for the Subsequent Approval is deemed
complete by City (collectively "City Laws ") , except
City Laws that:
(a) change any permitted or conditionally permitted
uses of the Property from what is allowed by the
Project Approvals;
(b) limit or reduce the density or intensity of the
Project, or any part thereof, or otherwise require
any reduction in the number of proposed buildings or
other improvements from what is allowed by the
Project Approvals.
(c) limit or control the rate, timing, phasing or
sequencing of the approval, development or
construction of all or any part of the Project in
any manner, provided that all infrastructure
required by the Project Approvals to serve the
portion of the Property covered by the Subsequent
Approval is in place or is scheduled to be in place
prior to completion of construction;
Ordinance No. 313
Page 10
(d) are not uniformly applied on a City -wide basis
to all substantially similar types of development
projects or to all properties with similar land use
designations;
(e) control residential rents;
(f) prohibit or regulate development on slopes with
grades greater than 20 percent, including without
limitation Moorpark Municipal Code Chapter 17.38 or
any successor thereto, within the Property; or
(g) modify the land use from what is permitted by
the City's General Plan Land Use Element at the
operative date of this Agreement or that prohibits
or restricts the establishment or expansion of urban
services including but not limited to community
sewer systems to the Project.
5.4. Term of Subsequent Approvals. The term of any
tentative map for the Property, or any portion
thereof, shall expire ten (10) years after its
approval or conditional approval or upon the
expiration or earlier termination of this Agreement,
whichever occurs first, notwithstanding the
provisions of Government Code Section 66452.6(a) or
the fact that the final map may be filed in phases.
Developer hereby waives any right that it may have
under the Subdivision Map Act, Government Code
Section 66410 et seq., or any successor thereto, to
apply for an extension of the time at which the
tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
The term of any Subsequent Approval, except a
tentative map or subdivision improvement or other
agreements relating to the Project, shall be one
year; provided that the term may be extended by the
decision maker for two (2) additional one (1) year
periods upon application of the Developer holding
the Subsequent Approval filed with City's Department
of Community Development prior to the expiration of
that Approval. Each such Subsequent Approval shall
Ordinance No. 313
Page 11
be deemed inaugurated, and no extension shall be
necessary, if a building permit was issued and the
foundation received final inspection by City's
Building Inspector prior to the expiration of that
Approval.
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the
term of this Agreement. Accordingly, throughout the
term of this Agreement, any Developer shall have the
right, at its election, to apply for a new permit to
replace a permit that has expired or is about to
expire.
5.5. Modification Of Approvals. Throughout the term of
this Agreement, Developer shall have the right, at
its election and without risk to or waiver of any
right that is vested in it pursuant to this section,
to apply to City for modifications to Project
Approvals and Subsequent Approvals. The approval or
conditional approval of any such modification shall
not require an amendment to this Agreement, provided
that, in addition to any other findings that may be
required in order to approve or conditionally
approve the modification, a finding is made that the
modification is consistent with this Agreement and
does not alter the permitted uses, density,
intensity, maximum height, size of buildings or
reservations and dedications as contained in the
Project Approvals.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from Developer if all
infrastructure required by the Project Approvals,
Subsequent Approvals, and this Agreement to serve
the portion of the Property covered by the building
permit is in place or is scheduled to be in place
prior to completion of construction and all of the
other relevant provisions of the Project Approvals,
Subsequent Approvals and this Agreement have been
satisfied. Consistent with subsection 5.1 of this
Agreement, in no event shall building permits be
allocated on any annual numerical basis or on any
arbitrary allocation basis.
Ordinance No. 313
Page 12
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing
and issuance of Subsequent Approvals and building
permits and on the finalizing of building permits by
means of a final inspection or certificate of
occupancy, provided that the moratorium is adopted or
imposed (i) on a City -wide basis to all substantially
similar types of development projects and properties
with similar land use designations and (ii) as a
result of a utility shortage or a reasonably
foreseeable utility shortage including without
limitation a shortage of water, sewer treatment
capacity, electricity or natural gas.
6. Developer Agreements.
6.1. Developer shall comply with (i) this Agreement, (ii)
the Project Approvals, (iii) all Subsequent
Approvals for which it was the applicant or a
successor in interest to the applicant and (iv) the
MMRP of the MND and any subsequent or supplemental
environmental actions.
6.2. All lands and interests in land dedicated to City
shall be free and clear of liens and encumbrances
other than easements or restrictions that do not
preclude or interfere with use of the land or
interest for its intended purpose, as reasonably
determined by City.
6.3. As a condition of the issuance of a building permit
for each residential or institutional use within the
boundaries of the Property, Developer shall pay City
a development fee as described herein (the
"Development Fee "). The Development Fee may be
expended by City in its sole and unfettered
discretion. On the operative date of this Agreement,
the amount of the Development Fee shall be Eight
Thousand Eight Hundred Ninety -Five Dollars
($8,895.00) per residential unit and Forty Thousand
Twenty -Eight Dollars ($40,028.00) per gross acre of
institutional land on which the use is located. The
fee for both residential and institutional uses
shall be adjusted annually commencing one (1) year
Ordinance No. 313
Page 13
after the first residential or institutional
building permit is issued within Tract 5425 by any
increase in the Consumer 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 within the Los
Angeles /Anaheim /Riverside metropolitan area during
the prior year. The calculation shall be made using
the month which is four (4) months prior to the
month in which the first residential building permit
is issued within Tract 5425 (e.g., if the permit
issuance occurs in October, then the month of June
is used to calculate the increase) . In the event
there is a decrease in the referenced Index 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.
6.4. As a condition of the issuance of a building permit
for each residential or institutional use within the
boundaries of the Property, Developer shall pay City
a traffic mitigation fee as described herein
( "Citywide Traffic Fee "). The Citywide Traffic Fee
may be expended by City in its sole and unfettered
discretion. On the operative date of this Agreement,
the amount of the Citywide Traffic Fee shall be Five
Thousand Seventy -Five Dollars ($5,075.00) per
residential unit, and Twenty -Two Thousand, Eight
Hundred Thirty -Eight Dollars ($22,838.00) per acre
of institutional land on which the institutional use
is located. Commencing on January 1, 2006, and
annually thereafter, both categories of the Citywide
Traffic Fee shall be increased to reflect the change
in the State Highway Bid Price Index for the twelve
(12) month period that is reported in the latest
issue of the Engineering News Record that is
available on December 31 of the preceding year
( "annual indexing ") . At its sole discretion, the
City may use the Highway Construction Cost Index
published by CalTrans in lieu of the State Highway
Bid Price Index. In the event there is a decrease in
the referenced Index for any annual indexing, the
Citywide Traffic Fee shall remain at its then
current amount until such time as the next
Ordinance No. 313
Page 14
subsequent annual indexing which results in an
increase.
6.5. As a condition of issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City
a community services fee as described herein
(Community Services Fee). The Community Services
Fee may be expended by City in its sole and
unfettered discretion. The amount of the Community
Services Fee shall be Two Thousand, Two Hundred
Thirty -Three Dollars ($2,233.00) per residential
unit, and Seven Thousand Seventy Dollars ($7,070.00)
per gross acre of institutional land on which the
institutional use is located. Commencing on January
1, 2008, and annually thereafter, the Community
Services Fee for both residential and institutional
uses shall be adjusted by any increase in the
Consumer Price Index (CPI) until all Community
Services Fees have been paid. The CPI increase
shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the
Los Angeles /Anaheim /Riverside metropolitan area
during the prior year. The calculation shall be
made using the month of August over the prior month
of August. In the event there is a decrease in the
CPI for any annual indexing, the Community Services
Fee shall remain at its then current amount until
such time as the next subsequent annual indexing
which results in an increase.
6.6. On the operative date of this Agreement, Developer
shall pay all outstanding City processing costs
related to preparation of this Agreement, Project
Approvals, and MND.
6.7. Prior to the issuance of the building permit for
each residential dwelling unit within the Property,
Developer shall pay a fee in lieu of the dedication
of parkland and related improvements (Park Fee). On
the operative date of this Agreement, the amount of
the Park Fee shall be Eight Thousand Two Hundred
Forty Dollars ($8,240.00) for each residential
dwelling unit and Fifty Cents ($.50) per square foot
of each building used for institutional purposes
Ordinance No. 313
Page 15
within the Property. The fee for both residential
and institutional uses shall be adjusted annually
commencing one (1) year after the first residential
or institutional building permit is issued within
Tract 5425 by any increase in the Consumer 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 within the Los Angeles /Anaheim /Riverside
metropolitan area during the prior year. The
calculation shall be made using the month which is
four (4) months prior to the month in which the
first residential building permit is issued within
Tract 5425 (e.g., if the permit issuance occurs in
October, then the month of June is used to calculate
the increase). In the event there is a decrease in
the referenced Index 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.
6.8. Provided that prior to recordation of the first
final map for Tract 5425 or March 31, 2006,
whichever is later, Ventura County Waterworks
District No. 1 or any successor entity confirms that
it has sufficient recycled water to serve the public
and community owned landscaped areas within Tract
5425, then Developer shall construct appropriately
sized water lines, pumping facilities, and storage
facilities for recycled water consistent with the
requirements of the City, Waterworks District No. 1
and Calleguas Water District. Said lines shall be
installed prior to the final cap being placed on all
streets. Developer shall provide service including
payment of any connection and meter charges and
shall use recycled water for medians and parkways
for all public streets, and any other public and
commonly owned landscaping and recreation areas. The
amount of recycled water needed and areas to be
irrigated by recycled water shall be determined by
Ordinance No. 313
Page 16
City at its sole discretion. The recycled water
line(s) shall be installed for each City approved
phase of development and the recycled water shall be
in use prior to the first occupancy approval for
each City approved phase of development if such
recycled water is available within one -half mile of
the Property. Developer shall install dual water
meters and services for all locations determined
necessary by City at its sole discretion to insure
that both potable and recycled water are available
where restroom and drinking fountains are planned.
6.9. Developer shall provide nine (9) three (3) bedroom
and two bath single family attached units with a
minimum of 1,600 square feet to be sold to buyers
who meet the criteria for low income (80 percent or
less of median income) ; six (6) three (3) bedroom
and two (2) bath single family attached units with a
minimum of 1,600 square feet to be sold to buyers
who meet the criteria for very low income (50
percent or less of median income); and five (5)
three (3) bedroom and two (2) bath single family
attached units with a minimum of 1,600 square feet
to be sold to buyers who meet the criteria for
moderate income (120 percent or less of median
income). All single family attached units shall
include a standard size two -car garage with roll -up
garage door and a minimum driveway length of
eighteen (18) feet measured from the back of
sidewalk, meet minimum setback requirements of RPD
2003 -02, include concrete roof tiles, and other
amenities provided in the market rate housing of
this Project (e.g., air conditioning /central
heating, washer /dryer hookups, garbage disposal,
built -in dishwasher, concrete driveway, automatic
garage door opener). The aforementioned twenty (20)
units are collectively referred to as the affordable
housing units or affordable units.
Developer further agrees that it has the obligation
to provide the required number of affordable housing
units as specified above regardless of the cost to
acquire or construct said housing units. Developer
further agrees that City has no obligation to use
eminent domain proceedings to acquire any of the
required housing units and that this subsection 6.9
Ordinance No. 313
Page 17
is specifically exempt from the requirements of
subsection 7.2 of this Agreement.
Prior to recordation of the first final Tract Map
for this Project, the parties agree to execute a
Purchase and Sale Agreement which further sets forth
the Developer's obligations of this subsection 6.9.
and City's obligations per subsection 7.7. The
Purchase and Sale Agreement shall be in the form
attached hereto as Exhibit "C ". The Developer
agrees to pay all City costs for preparation of the
Purchase and Sale Agreement and its implementation
and administration through the sale and occupancy of
the last of the twenty (20) affordable housing
units.
The Developer agrees that the intent of this
subsection 6.9. and the Purchase and Sale Agreement
is to provide the twenty (20) affordable housing
units consistent with applicable State and Federal
laws and that said units remain affordable for the
longest feasible time. Developer further agrees that
the City at its sole discretion will make all
decisions pertaining to the selection of eligible
first time home buyers and all requirements placed
on the sale of the twenty (20) affordable housing
units to said buyers. The difference between the
initial purchase price by a qualified buyer and
market value shall be retained by the City as a
second deed of trust.
The actual initial purchase price (Affordable Sales
Price) paid by a qualified buyer, market value,
buyer eligibility, resale restrictions, equity share
and second trust deed provisions, and any other
items determined necessary by the City will be
approved by the City Council in its sole and
unfettered discretion prior to or at such time as
qualified buyers are selected to purchase the
affordable housing units.
All units shall meet the criteria of all applicable
State laws to qualify as newly affordable to
moderate income, low income and very low income
persons (in the quantity as specified in this
Agreement) to satisfy a portion of the City's RHNA
Ordinance No. 313
Page 18
obligation and the Moorpark Redevelopment Agency's
affordable housing goals. None of the affordable
units required by this Agreement shall duplicate or
substitute for the affordable housing requirement of
any other developer or development project. All
subsequent approvals required of City under this
subsection 6.9 shall be made at City's sole
discretion. If any conflict exists between this
Agreement and the Purchase and Sale Agreement or the
conditions of approval for Tract Map No. 5425 and /or
RPD No. 2003 -02, then the provision providing the
City the most favorable language for assisting
eligible first time home buyers who meet the
qualification of moderate, low and very low income
shall prevail.
Developer agrees to provide the same home warranties
associated with the market rate units in the same
project as the affordable units for the maximum time
required by State law, but in no event less than ten
(10) years. Developer agrees that all such
warranties shall inure to the benefit of and be
enforceable by the ultimate occupants of the
moderate income, low income and very low income
units, and that all warranties by subcontractors and
suppliers shall inure to the benefit of and be
enforceable by such occupants. The qualified buyer
(or City in lieu of a qualified buyer at its sole
discretion) shall have the same choices of finish
options as purchasers of other units in the project
and final walk - through approval of condition of unit
before close of sale. Any options provided to
buyers of units shall be provided to buyer(s) of the
required units including but not limited to color
and style choices for carpeting and other floor
coverings. Flooring selections shall be made within
10 days of Developer's request for selection.
In the event the monthly HOA fees for the affordable
units exceed $100.00 for each affordable unit,
Developer shall deposit $120.00 for each dollar or
portion thereof of the monthly HOA fees that are in
excess of $100.00 into a City administered trust to
assist with future HOA fees for each affected
affordable unit.
Ordinance No. 313
Page 19
The Affordable Sales Price for the low - income buyers
shall not exceed affordable housing cost, as defined
in Sec. 50052.5(b) (2) of California Health and
Safety Code. For a household of 4, the current
monthly "affordable housing cost" would be 30o times
700 of $80,600.00, the current median income for a
household of 4 in Ventura County, divided by 12.
This monthly amount includes the components
identified in Section 6920 of Title 25 of the
California Code of Regulations shown below. (See
Section 50052.5(c) of the Health and Safety Code.)
The Affordable Sales Price for a low income
household of 4 would be $165,000.00 under current
market conditions, based upon the following
assumptions:
Low Income Buyer
Household of Four
Item
Detail
Amount
Affordable Sales
Price
$165,000
Down Payment
50 of Affordable
Sales Price
$8,250
Loan Amount
Affordable Sales
Price less down
payment
$156,750
Interest Rate
5.950
Property Tax
1.250 of
Affordable Sales
Price
$172 /mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$30 /mo.
Utilities
$171 /mo.
The Affordable Sales Price for a low income
household of five or more would be based on the
affordable housing cost for the actual household
size.
The assumptions associated with the above purchase
price figures for low income households include a 50
down payment, based on the Affordable Sales Price,
mortgage interest rate of 5.95 %, no mortgage
insurance, property tax rate of 1.250, based on
Ordinance No. 313
Page 20
Affordable Sales Price, homeowners' association dues
of $100 per month, fire insurance of $20 per month,
maintenance costs of $30 per month, and utilities of
$171 per month for a household of 4, assuming a 3
bedroom unit.
The Affordable Sales Price for the very low income
buyers shall not exceed affordable housing cost, as
defined in Section 50052.5(b)(2) of California
Health and Safety Code. For a household of 4, the
current monthly "affordable housing cost" would be
30% times 50% of $80,600.00, the current median
income for a household of 4 in Ventura County,
divided by 12. This monthly amount includes the
components identified in Section 6920 of Title 25 of
the California Code of Regulations shown below.
(See Section 50052.5(c) of the Health and Safety
Code.) The Affordable Sales Price for a very low
income household of 4 or fewer would be $104,000.00
under current market conditions, based upon the
following assumptions:
Very Low Income Buyer
Household of Four
Item
Detail
Amount
Affordable Sales
Price
$104,000
Down Payment
50 of Affordable
Sales Price
$5,200
Loan Amount
Affordable Sales
Price less down
payment
$98,800
Interest Rate
5.95%
Property Tax
1.25% of
Affordable Sales
Price
$108 /mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$30 /mo.
Utilities
$171 1mo.
That Affordable Sales Price for a very low income
household of five or more would be based on the
affordable housing cost for the actual household
size.
Ordinance No. 313
Page 21
The assumptions associated with the above purchase
price figures for very low income households include
a 5% down payment, based on the Affordable Sales
Price, mortgage interest rate of 5.950, no mortgage
insurance, property tax rate of 1.250, based on
Affordable Sales Price, homeowners' association dues
of $100 per month, fire insurance of $20 per month,
maintenance costs of $30 per month, and utilities of
$171 per month for a household of 4, assuming a 3
bedroom unit.
Moderate Income Buyer
Household of Four
The Affordable Sales Price for the moderate income
buyers shall not exceed affordable housing cost, as
defined in Sec. 50052.5(b) (2) of California Health
and Safety Code. For a household of 4, the current
monthly "affordable housing cost" would be 35% times
110% of $80,600.00, the current median income for a
household of 4 in Ventura County, divided by 12.
This monthly amount includes the components
identified in Section 6920 of Title 25 of the
California Code of Regulations shown below. (See
Section 50052.5(c) of the Health and Safety Code.)
The Affordable Sales Price for a moderate income
household of 4 would be $313,000.00 under current
market conditions, based upon the following
assumptions:
Item
Detail
Amount
Affordable Sales
Price
$313,000
Down Payment
5% of Affordable
Sales Price
$15,650
Loan Amount
Affordable Sales
Price less down
payment
$297,350
Interest Rate
5.9596
Property Tax
1.25% of Market
Price
$326 mo.
HOA dues
$100 mo.
Fire casualty ins.
$50 mo.
Maintenance
$30 mo.
Utilities
$171 /mo.
Ordinance No. 313
Page 22
That Affordable Sales Price for a moderate income
household of five or more would be based on the
affordable housing cost for the actual household
size.
The assumptions associated with the above purchase
price figures for moderate income households include
a 5% down payment based on the Affordable Sales
Price, mortgage interest rate of 5.950, no mortgage
insurance, property tax rate of 1.25 %, based on
Affordable Sales Price, homeowners' association dues
of $100 per month, fire insurance of $20 per month,
maintenance costs of $30 per month, and utilities of
$171 per month for a household of 4, assuming a 3
bedroom unit.
Developer acknowledges that changes in market
conditions may result in changes to the Affordable
Sales Price, down payment amounts, mortgage interest
rates, and other factors for the moderate, low
income and very low income buyers. Furthermore, if
"affordable housing cost ", as defined in Section
50052.5 of California Health and Safety Code, should
change in the future, the above guidelines will be
modified to achieve substantially the same result as
would otherwise have been obtained had it not been
changed.
In the event the City, at its sole discretion
purchases one or more of the affordable units from
Developer in lieu of a qualified buyer, the
Affordable Sales Price shall be based on a household
size of 4 persons and consistent with all
requirements of this subsection 6.9. Developer
agrees that prior to and upon the sale of a required
unit to a qualified buyer (or City in lieu of a
qualified buyer as determined by City at its sole
discretion), City may at its sole discretion take
any actions and impose any conditions on said sale
or subsequent sale of the unit to ensure ongoing
affordability to moderate, low and very low income
households and related matters. After the sale of a
housing unit by Developer to a qualified buyer (or
City in lieu of a qualified buyer as determined by
City at its sole discretion), City, not Developer,
Ordinance No. 313
Page 23
shall have sole responsibility for approving any
subsequent sale of that affordable housing unit.
Developer shall pay closing costs for each unit, not
to exceed $6,000. Beginning March 1, 2007, and on
March 1st for each of fifteen subsequent years, the
maximum $6,000 to be paid for closing costs shall be
increased annually by any percentage increase in the
Consumer Price Index (CPI) for All Urban Consumers
for Los Angeles /Orange /Riverside 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 annual indexing, the amount due
shall remain at its then current amount until such
time as the next subsequent annual indexing which
results in an increase. The referenced Developer
funded closing costs shall be for the benefit of
qualified buyers (or City in lieu of qualified
buyers as determined by City at its sole discretion
for one or more of the required units) in their
acquisition of a unit from Developer not Developer's
acquisition of a unit from one or more third
parties. The Developer's escrow cost shall not
exceed the then applicable maximum amount per unit
regardless of the number of escrows that may be
opened on a specific unit prior to the closing of
the initial sale to a qualified buyer or City in
lieu of a qualified buyer.
No less than thirty (30) days prior to the offering
for sale to the general public of units 33 and 80 as
approved by RPD 2003 -02, with approximately 1600
square feet (units), Developer shall provide City
with notice of said intended sale. Said notice
shall include the proposed sale price. Within
thirty (30) days of receiving said notice, City may
purchase one or both of the above - referenced units
and enter into escrow at the stated price or such
other price as may be negotiated by the parties.
Developer warrants that said price shall be no
higher than what would be offered to a bona fide
qualified purchaser from the general public. City
warrants that if it exercises its right to purchase,
it will purchase said units for the purpose of
reselling it to a qualified first time home buyer
Ordinance No. 313
Page 24
with income not exceeding moderate income. Upon
mutual agreement of the parties, said first time
home buyer may be substituted for City with the
requirement that the City will work with buyer to
finance the purchase of the unit. Buyer gets all
the same new home warranties as the purchase of any
market rate unit in the Project. The Developer with
the written approval of the City Manager or designee
may substitute a different unit location within the
Project for either unit 33 or 80 so long as the unit
contains no less than 1,600 square feet.
The location of the twenty (20) affordable units
within the Project and the schedule for providing
the affordable units by the Developer to qualified
buyers or City in lieu of said buyers shall be
included in the Purchase and Sale Agreement.
6.10. Developer agrees that the Mitigation Measures
included in the City Council approved MND and MMRP,
or subsequent environmental clearance document
approved by the Council, set forth the mitigation
requirements for air quality impacts. Developer
agrees to pay to City an air quality mitigation fee,
as described herein (Air Quality Fee), in
satisfaction of the Transportation Demand Management
Fund mitigation requirement for the Project. The
Air Quality Fee may be expended by City in its sole
discretion for reduction of regional air pollution
emissions and to mitigate residual Project air
quality impacts.
At the time the Fee is due, City may at its sole
discretion require Developer to purchase equipment,
vehicles, or other items, contract and pay for
services, or make improvements for which Developer
shall receive equivalent credit against Air Quality
Fee payments or refund of previous payments.
The Air Quality Fee shall be One Thousand, Six
Hundred, Thirty -Six Dollars ($1,636.00) per
residential unit to be paid prior to the issuance of
each building permit for the first residential unit
in Tract 5130. Commencing on March 1, 2007, and
annually thereafter the Air Quality Fee shall be
adjusted by any increase in the Consumer Price Index
Ordinance No. 313
Page 25
(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 within the Los Angeles /Anaheim /Riverside
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 annual
indexing, the fee shall remain at its then current
amount until such time as the next subsequent annual
indexing which results in an increase.
For institutional uses, the Air Quality Fee shall be
calculated by the Director of Community Development
consistent with the then applicable Ventura County
Air Quality Management District URBEMIS Model prior
to the first occupancy approval for each
institutional use.
6.11. Developer hereby waives any right that it may have
under California Government Code Section 65915 et.
seq., or any successor thereto, or any other
provision of Federal, State, or City laws or
regulations for application or use of any density
bonus that would increase the number of dwelling
units approved to be constructed on the Property.
6.12. Developer agrees to cast affirmative ballots for the
formation of one or more assessment districts and
levying of assessments, for the maintenance of
parkway and median landscaping, street lighting,
including but not limited to all water and
electricity costs, and if requested by the City
Council, parks for the provision of special benefits
conferred by same upon properties within the
Project. Developer further agrees to form one or
more property owner associations and to obligate
said associations to provide for maintenance of
parkway and median landscaping, street lighting, and
if requested by the City Council, parks in the event
the aforementioned assessment district is dissolved
or altered in any way or assessments are reduced or
limited in any way by a ballot election of property
owners, or if the assessment district is invalidated
by court action. Prior to recordation of the first
Ordinance No. 313
Page 26
final map for the Property, if required by City at
its sole discretion, Developer shall also form one
or more property owner associations to assume
ownership and maintenance of open space land,
trails, storm water detention and /or debris basins
and related drainage facilities, landscaping, and
other amenities, and to comply with the National
Pollutant Discharge Elimination System (NPDES)
requirements of the Project. The obligation of said
property owner associations shall be more
specifically defined in the conditions of approval
of Tract 5425 and RPD 2003 -02.
6.13. 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 paid. Said fees include but are not
limited to Library Facilities Fees, Police
Facilities Fees, Fire Facilities Fees, drainage,
entitlement processing fees, and plan check and
permit fees for buildings and public improvements.
Developer further agrees that unless specifically
exempted by this Agreement, it is subject to all
fees imposed by City at the operative date of this
Agreement and such future fees imposed as determined
by City in its sole discretion so long as said fee
is imposed on similarly situated properties.
6.14. Developer shall pay the Los Angeles Avenue Area of
Contribution (AOC) fee for each residential lot and
institutional use prior to the issuance of a
building permit for each lot or use. The AOC fee
shall be the dollar amount in effect at the time of
issuance of the building permit for each residential
lot and institutional use.
6.15. The street improvements for all streets scheduled
for dedication to the City shall be designed and
constructed by Developer to provide for a 50 -year
life as determined by the City Engineer.
6.16. Developer agrees that any fees and payments pursuant
to this Agreement and for vesting Tentative Tract
Map No. 5133 shall be made without reservation, and
Developer expressly waives the right to payment of
Ordinance No. 313
Page 27
any such fees under protest pursuant to California
Government Code Section 66020 and statutes
amendatory or supplementary thereto. Developer
further agrees that the fees it has agreed to pay
pursuant to subsections 6.3 and 6.5 of this
Agreement are not public improvement fees collected
pursuant to Government Code Section 66006 and
statutes amendatory or supplementary thereto.
6.17. Developer agrees to comply with Section 15.40.150 of
the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual
review of this Agreement and further agrees that the
annual review shall include evaluation of its
compliance with the approved MND and MMRP.
6.18. Developer agrees to provide City with cash deposits
as City may require at its sole discretion to pay
all City and related costs for the proceedings and
related services for possible formation of a
District as referenced in subsection 7.6 of this
Agreement, which may be required to be paid prior to
formation of a District, or in the event a District
is not formed, after the commencement of proceedings
related thereto. Said costs may include but are not
limited to attorney fees, engineering fees, City
staff costs, and City overhead expenses of fifteen
percent (15 %) on all out of pocket and professional
service costs.
Developer further agrees that City may at its sole
discretion select the bond counsel, underwriter,
financial advisor and any other professional service
provider City deems necessary to process the
possible formation of a District.
6.19. Developer agrees that any election to acquire
property by eminent domain shall be at City's sole
discretion, and only after compliance with all
legally required procedures including but not
limited to a hearing on a proposed resolution of
necessity.
6.20 In the event either or both of the "'CPI" referred to
Sections 6.3, 6.5, 6.7 and 6.10, above and the
"referenced Index" referred to Section 6.4, above
Ordinance No. 313
Page 28
are discontinued or revised, such successor index
with which the "CPI" and or "referenced Index" are
replaced shall be used in order to obtain
substantially the same result as would otherwise
have been obtained if either or both the "CPI" and
"referenced Index" had not been discontinued or
revised.
7. Citv Aareements.
7.1. City shall commit reasonable time and resources of
City staff to work with Developer on the expedited
and parallel processing of applications for
Subsequent Approvals for the Project area and shall
use overtime and independent contractors whenever
possible. Developer shall assume any risk related
to, and shall pay the additional costs incurred by
City for, the expedited and parallel processing.
7.2. If requested in writing by Developer and limited to
City's legal authority, City at its sole discretion
shall proceed to acquire, at Developer's sole cost
and expense, easements or fee title to land in which
Developer does not have title or interest in order
to allow construction of public improvements
required of Developer including any land which is
outside City's legal boundaries. The process shall
generally follow Government Code Section 66462.5 et
seq. and shall include the obligation of Developer
to enter into an agreement with City, guaranteed by
cash deposits and other security as the City may
require, to pay all City costs including but not
limited to, acquisition of the interest, attorney
fees, appraisal fees, engineering fees, City staff
costs, and City overhead expenses of fifteen percent
(15 %) on all out -of- pocket costs.
7.3. The City Manager is authorized to sign an early
grading agreement on behalf of City to allow rough
grading of the Project prior to City Council
approval of a final subdivision map. Said early
grading agreement shall be consistent with the
conditions of approval for Tract 5425 and RPD 2003-
02 and contingent on City Engineer and Director of
Community Development acceptance of a Performance
Bond in a form and amount satisfactory to them to
Ordinance No. 313
Page 29
guarantee implementation of the erosion control plan
and completion of the rough grading and construction
of on -site and off -site improvements. In the case
of failure to comply with the terms and conditions
of the early grading agreement, the City Council may
by resolution declare the surety forfeited.
7.4. City agrees that whenever possible as determined by
City in its sole discretion to process concurrently
all land use entitlements for the same property so
long as said entitlements are deemed complete.
7.5. City agrees that the Park Fee required under
subsection 6.7. of this Agreement meets Developer's
obligation for park land dedication provisions of
state law and City codes.
7.6. City agrees that upon receipt of a landowners'
petition by Developer and Developer's payment of a
fee, as prescribed in California Government Code
Section 53318, as well as payment for costs
described in subsection 6.18 of this Agreement, City
shall commence proceedings to form a Mello -Roos
Community Facilities District ( "District ") and to
incur bonded indebtedness to finance all or portions
of the public facilities, infrastructure and
services that are required by the Project and that
may be provided pursuant to the Mello -Roos Community
Facilities Act of 1982 (the "Act "); provided,
however, the City Council, in its sole and
unfettered discretion, may abandon establishment of
the District upon the conclusion of the public
hearing required by California Government Code
Section 53321 and /or deem it unnecessary to incur
bonded indebtedness at the conclusion of the hearing
required by California Government Code Section
53345.
The purpose of any such District may also include
fees for funding public facilities, infrastructure
and services that are required by the Project to the
extent permitted by the Act as determined by bond
counsel for the District's bond indebtedness
financing. City may select and retain bond counsel,
engineers, underwriters, financial advisors and any
other professional service providers it deems
Ordinance No. 313
Page 30
necessary at its sole
proceedings and related
formation of a District.
to the extent permitted b,
bond counsel, Developer m�
advanced by Developer f(
proceedings.
discretion to conduct
services for possible
City further agrees that,
the Act as determined by
y be reimbursed for costs
r formation and related
In the event that a District is formed, the special
tax levied against any residential lot or residence
thereon shall afford the buyer the option to prepay
the special tax in full prior to the close of escrow
on the initial sale of the developed lot by the
builder of the residence.
7.7. The City agrees to appoint an affordable housing
staff person to oversee the implementation of the
affordable housing requirements for the Property
required herein for the duration such units are
required to be maintained as affordable consistent
with the provisions of subsection 6.9 of this
Agreement and the Purchase and Sale Agreement.
7.8. City shall facilitate the reimbursement to Developer
of any costs incurred by Developer that may be
subject to partial reimbursement from other
developers as a condition of approval of a tract map
development permit or development agreement with one
or more other developers.
8. Supersession of Agreement by Change of Law. In the event
that any state or federal law or regulation enacted after
the date the Enabling Ordinance was adopted by the City
Council prevents or precludes compliance with any provision
of the Agreement, such provision shall be deemed modified
or suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City.
9. Demonstration of Good Faith Compliance. In order to
ascertain compliance by Developer with the provisions of
this Agreement, the Agreement shall be reviewed annually in
accordance with Moorpark Municipal Code Chapter 15.40. 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 this Agreement by City,
diminish, impede, or abrogate the obligations of Developer
Ordinance No. 313
Page 31
hereunder or render this Agreement invalid or void. At the
same time as the referenced annual review, City shall also
review Developer's compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, shall be
excused during any period of "Excusable Delay ", as
hereinafter defined, provided that the Party claiming the
delay gives notice of the delay to the other Parties as
soon as possible after the same has been ascertained. For
purposes hereof, Excusable Delay shall mean delay that
directly affects, and is beyond the reasonable control of
the Party claiming the delay, including without limitation:
(a) act of God; (b) civil commotion; (c) riot; (d) strike,
picketing or other labor dispute; (e) shortage of materials
or supplies; (f) damage to work in progress by reason of
fire, flood, earthquake or other casualty; (g) failure,
delay or inability of City to provide adequate levels of
public services, facilities or infrastructure to the
Property including, by way of example only, the lack of
water to serve any portion of the Property due to drought;
(h) delay caused by a restriction imposed or mandated by a
governmental entity other than City; or (i) litigation
brought by a third party attacking the validity of this
Agreement, a Project Approval, a Subsequent Approval or any
other action necessary for development of the Property.
11. Default Provisions.
ll.1.Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or willfully violates any
order, ruling or decision of any regulatory or
judicial body having jurisdiction over the
Property or the Project, provided that Developer
may contest any such order, ruling or decision
by appropriate proceedings conducted in good
faith, in which event no breach of this
Agreement shall be deemed to have occurred
unless and until there is a final adjudication
adverse to Developer; or
(b) fails to make any payments required under this
Agreement; or
Ordinance No. 313
Page 32
(c) breaches any of the provisions of the Agreement.
11.2.Default by City. City shall be deemed in breach of
this Agreement if it breaches any of the provisions
of the Agreement.
11.3.Content of Notice of Violation. Every notice of
violation shall state with specificity that it is
given pursuant to this subsection of the Agreement,
the nature of the alleged breach, and the manner in
which the breach may be satisfactorily cured. Every
notice shall include a period to cure, which period
of time shall not be less than ten (10) days from
the date that the notice is deemed received,
provided if the defaulting party cannot reasonably
cure the breach within the time set forth in the
notice such party must commence to cure the breach
within such time limit and diligently effect such
cure thereafter. The notice shall be deemed given
on the date that it is personally delivered or on
the date that it is deposited in the United States
mail, in accordance with Section 20 hereof.
11.4.Remedies for Breach. The Parties acknowledge that
remedies at law, including without limitation money
damages, would be inadequate for breach of this
Agreement by any Party due to the size, nature and
scope of the Project. The Parties also acknowledge
that it would not be feasible or 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 the
Agreement shall be limited to the remedies expressly
set forth in this subsection. Prior to pursuing the
remedies set forth herein, notice and an opportunity
to cure shall be provided pursuant to subsection
11.3 herein.
The remedies for breach of the Agreement by City
shall be injunctive relief and /or specific
performance.
The remedies for breach of the Agreement by
Developer shall be injunctive relief and /or specific
performance. In addition, if the breach is of
Ordinance No. 313
Page 33
subsections 6.9, 6.10, 6.12, 6.13, 6.14, 6.15, 6.16,
6.17, 6.18, or subsection 6.19 of this Agreement,
City shall have the right to withhold the issuance
of building permits to Developer throughout the
Project 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.
Nothing in this subsection shall be deemed to
preclude City from prosecuting a criminal action
against any Developer who violates any City
ordinance or state statute.
12. Mortgage Protection. At the same time that City gives
notice to Developer of a breach, City shall send a copy of
the notice to each holder of record of any deed of trust on
the portion of the Property in which Developer has a legal
interest ( "Financier "), provided that the Financier has
given prior written notice of its name and mailing address
to City and the notice makes specific reference to this
section. The copies shall be sent by United States mail,
registered or certified, postage prepaid, return receipt
requested, and shall be deemed received upon the third
(3rd) day after deposit.
Each Financier that has given prior notice to City pursuant
to this section shall have the right, at its option and
insofar as the rights of City are concerned, to cure any
such breach within fifteen (15) days after the receipt of
the notice from City. If such breach cannot be cured
within such time period, the Financier shall have such
additional period as may be reasonably required to cure the
same, provided that the Financier gives notice to City of
its intention to cure and commences the cure within fifteen
(15) days after receipt of the notice from City and
thereafter diligently prosecutes the same to completion.
City shall not commence legal action against Developer by
reason of Developer's breach without allowing the Financier
to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall
be binding and effective against the Financier and every
owner of the Property, or part thereof, whose title thereto
is acquired by foreclosure, trustee sale or otherwise.
Ordinance No. 313
Page 34
13. Estoppel Certificate. At any time and from time to time,
Developer may deliver written notice to City and City may
deliver written notice to Developer requesting that such
Party certify in writing that, to the knowledge of the
certifying Party, (i) this Agreement is in full force and
effect and a binding obligation of the Parties, (ii) this
Agreement has not been amended, or if amended, the identity
of each amendment, and (iii) the requesting Party is not in
breach of this Agreement, or if in breach, a description of
each such breach. The Party receiving such a request shall
execute and return the certificate within thirty (30) days
following receipt of the notice. City acknowledges that a
certificate may be relied upon by successors in interest to
the Developer who requested the certificate and by holders
of record of deeds of trust on the portion of the Property
in which that Developer has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
herewith may be appealed by the Developer to the City
Council, provided that any such appeal shall be filed with
the City Clerk of City within ten (10) days after the
affected Developer receives notice of the staff decision.
The City Council shall render its decision to affirm,
reverse or modify the staff decision within thirty (30)
days after the appeal was filed. The Developer shall not
seek judicial review of any staff decision without first
having exhausted its remedies pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Chapter 15.40 of the Moorpark
Municipal Code of City or any successor thereof then in
effect, this Agreement may be amended or terminated, in
whole or in part, by mutual consent of City and the
affected Developer.
15.1 Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this
Agreement at the time that the amendment becomes
effective, provided that the amendment is consistent
with this Agreement and does not alter the permitted
uses, density, intensity, maximum height, size of
Ordinance No. 313
Page 35
buildings or reservations and dedications as
contained in the Project Approvals.
16. Indemnification. Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims,
demands, damages, injuries or judgments arising out of, or
resulting in any way from, Developer's performance pursuant
to this Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees
and agents from and against any action or proceeding to
attack, review, set aside, void or annul this Agreement, or
any provision thereof, or any Project Approval or
Subsequent Approval or modifications thereto, or any other
subsequent entitlements for the project and including any
related environmental approval.
17. Time of Essence. Time is of the essence for each provision
of this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on
the date the Enabling Ordinance becomes effective pursuant
to Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
for a term of twenty (20) years commencing on its operative
date or until the close of escrow on the initial sale of
the last Affordable Housing Unit, whichever occurs last,
unless said term is amended or the Agreement is sooner
terminated as otherwise provided herein.
Expiration of the term or earlier termination of this
Agreement shall not automatically affect any Project
Approval or Subsequent Approval that has been granted or
any right or obligation arising independently from such
Project Approval or Subsequent Approval.
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document
reasonably requested by any Party to remove this Agreement
from the public records as to the Property, and every
portion thereof, to the extent permitted by applicable
laws.
Ordinance No. 313
Page 36
20. Notices. All notices and other communications given
pursuant to this Agreement shall be in writing and shall be
deemed received when personally delivered or upon the third
(3rd) day after deposit in the United States mail,
registered or certified, postage prepaid, return receipt
requested, to the Parties at the addresses set forth in
Exhibit "B" attached hereto and incorporated herein.
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof,
and all prior agreements or understandings, oral or
written, are hereby merged herein. This Agreement shall
not be amended, except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing
or subsequent waiver of the same provision. No waiver
shall be binding, unless it is executed in writing by a
duly authorized representative of the Party against whom
enforcement of the waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be
invalid or unenforceable, the remainder of this Agreement
shall be effective to the extent the remaining provisions
are not rendered impractical to perform, taking into
consideration the purposes of this Agreement.
24. Relationship of the Parties. Each Party acknowledges that,
in entering into and performing under this Agreement, it is
acting as an independent entity and not as an agent of any
of the other Parties in any respect. Nothing contained
herein or in any document executed in connection herewith
shall be construed as creating the relationship of
partners, joint ventures or any other association of any
kind or nature between City and Developer, jointly or
severally.
Ordinance No. 313
Page 37
25. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole benefit of the Parties and their
successors in interest. No other person shall have any
right of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement
and any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Chapter 15.40 of the Moorpark
Municipal Code of City or any successor thereof then in
effect.
27. Cooperation Between City and Developer. City and Developer
shall execute and deliver to the other all such other and
further instruments and documents as may be necessary to
carry out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience of reference only, and they shall not
constitute a part of this Agreement for any other purpose
or affect interpretation of the Agreement. Should any
provision of this Agreement be found to be in conflict with
any provision of the Purchase and Sale Agreement, the
Project Approvals or the Subsequent Approvals, the
provision of this Agreement shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it
shall not be construed against any Party on the ground that
the Party prepared the Agreement or caused it to be
prepared.
30. Governing Law and Venue. This Agreement is made, entered
into, and executed in the County of Ventura, California,
and the laws of the State of California shall govern its
interpretation and enforcement. Any action, suit or
proceeding related to, or arising from, this Agreement
shall
be filed in the appropriate court having jurisdiction in
the County of Ventura.
31. Attorneys' Fees. In the event any action, suit or
proceeding is brought for the enforcement or declaration of
any right or obligation pursuant to, or as a result of any
alleged breach of, this Agreement, the prevailing Party
Ordinance No. 313
Page 38
shall be entitled to its reasonable attorneys' fees and
litigation expenses and costs, and any judgment, order or
decree rendered in such action, suit or proceeding shall
include an award thereof.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original,
but all of which constitute one and the same instrument.
IN WITNESS WHEREOF, Shea Homes, Limited Partnership, and
City of Moorpark have executed this Development Agreement on the
date first above written.
CITY OF MOORPARK
Patrick Hunter
Mayor
OWNER /DEVELOPER
Shea Homes, Limited Partnershi
By: J.F. Shea, Co., Inc., a Nevada
corporation, its General Partner
By:
Steve Seemann
Assistant Secretary
By:
Jeff Palmer
Assistant Secretary
Ordinance No. 313
Page 39
EXHIBIT A
DESCRIPTION
Parcel A:
Lot 54, Fremont Tract, in the County of Ventura, State of California, as per Map
recorded in Book 3, Page 39 of Maps, in the office of the County Recorder of said
County.
EXCEPT therefrom the North 375 feet of the West 135 feet of the East 140 feet of
said Lot 54.
ALSO EXCEPT therefrom the South 120 feet of the North 615 feet of the East 135
feet of said Lot 54.
ALSO EXCEPT therefrom that portion conveyed to the State of California by deed
recorded October 29, 1969 as Document No. 57174 in Book 3570, Page 498 of
Official Records.
ALSO EXCEPT therefrom the North 725 feet of the West 140 feet of said Lot 54.
ALSO EXCEPT the South 60 feet of the North 675 feet of.the West 130 feet of the
East 140 feet of said Lot 54.
ALSO EXCEPT that portion thereof described as follows:
Beginning at a point on the Westerly line of said Lot 54 at the Southwesterly
corner of the Northerly 725 feet of said Lot 54, thence along said Westerly line,
1st: South 115.85 feet thence parallel with the Southerly line and prolongation
thereof, of said Northerly 725 feet of Lot 54,
2nd: East 320 feet to the Westerly line of the Easterly 10 feet of said Lot 54
thence along said last mentioned Westerly line,
3rd: North 165.85 feet to the Southerly line of the Northerly 675 feet of said
Lot 54; thence along said last mentioned Southerly line,
4th: West 130 feet to the Easterly line of the Westerly 190 feet of said Lot 54;
thence along said Easterly line,
5th: South 50 feet to the Southerly line of said Northerly 725 feet of Lot 54;
thence along said Southerly line,
6th: West 190 feet of the point of beginning_
Parcel B:
Parcel 1 as shown on Parcel Map filed November 15, 1968, in the City of Moorpark,
County of Ventura, State of California, as per Map recorded in Boor. 4, Page 96
Parcel Maps, in the office of the County Recorder of said County.
Ordinance No. 313
Page 40
Parcel C:
That portion of Lot 55 of Fremont Tract, in the City- of Moorpark, County of
Ventura, State of California, as per Map recorded in Book 3, Page 39, of Maps, ir;
the office of the County Recorder of said County, described as follows:
Beginning at a point which is the intersection of the West line of said :lot with
the center line of I.os Angeles Avenue; thence,
1st: North 890 55' East 330.00 feet along the center line of Los Angeles Avenue;
thence,
2nd: South 001 05' East 280.00 feet along the East line of said lot; thence,
3rd: South 890 55' West 330.00 feet to a point which is on the West line of said
lot; thence,
4th: North 000 05' West 280.00 feet to the point of beginning.
EXCEPT therefrom that portion of said land conveyed to the State of California,
by deed recorded September 15, 1958, in Book 3549, Page 129 of Official Records.
ALSO EXCEPT ALL OIL, OIL RIGHTS, MINERALS, MINERAL RIGHTS, NATURAL GAS RIGHTS AND
OTHER HYDROCABONS BY WHATSOEVER NAME KNOWN, GEOTHERMAL STEAM AND ALL PRODUCTS
DERIVED FROM ANY OF THE FOREGOING, THAT MAY BE WITHIN OR UNDER THE PROPERTY,
TOGETHER WITH THE PERPETUAL RIGHT OF DRILLING, MINING, EXPLORING AND OPERATING
THEREFOR AND STORING IN AND REMOVING THE SAME FROM SAID PROPERTY OR ANY OTHER
LAND, LYING BELOW A DEPTH OF FIVE HUNDRED (500) FEET MEASURED VERTICALLY FROM THE
CONTOUR OF THE SURFACE THEREOF, BUT WITHOUT THE RIGHT FOR ANY PURPOSE WHATSOEVER
TO ENTER ONTO, INTO OR THROUGH THE SURFACE OF THE PROPERTY OR ANY PART THEREOF
LYING BETWEEN THE SURFACE AND FIVE HUNDRED (500) FEET BELOW THE SURFACE.
Parcel D:
Lot 55 of Fremont Tract, in the County of Ventura, State of California, as per
Map recorded in Book 3, Page 39 of Maps, in the office of the County Recorder of
said County.
EXCEPT that portion described as follows:
Beginning at a point which is the intersection of the West line of said lot with
the center lire of Los Angeles Avenue; thence,
1st: North 890 55' East 330.00 feet along the center line of Los Angeles Avenue;
thence,
2nd: South 000 05' East 280.00 feet along the East line of said lot; thence,
3rd: South 89° 55' West 330.00 feet to a point which is on the West lines of said
Ordinance No. 313
Page 41
!on; thence,
4t:: North CC° GS' west 280.00 feet to the said point of beginning.
EXCEPT that portion thereof lying within Los Angeles Avenue.
Ordinance No. 313
Page 42
EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Shea Homes, Limited Partnership
30699 Russell Ranch Road, Suite 290
Westlake Village, CA 91361
Attn: Steve Seemann
With a Copy To:
Jackson, DeMarco & Peckenpaugh
2030 Main Street, Suite 1200
Irvine, CA 92623
Attn: Andrew Bernstein, Esq.
Ordinance No. 313
Page 43
EXHIBIT "C"
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (the "Agreement ") is made
and entered into as of the day of , 2005,
by and between SHEA HOMES, LIMITED PARTNERSHIP (hereinafter
referred to as "DEVELOPER "), and the CITY OF MOORPARK ( "CITY ").
RECITALS
WHEREAS, California Health & Safety Code Section
33413(b) (2) (A) (i) requires that "at least 15 percent of all new
and substantially rehabilitated dwelling units developed within
a project area under the jurisdiction of an agency by public or
private entities or persons other than the agency shall be
available at affordable housing cost to, and occupied by,
persons and families of low or moderate income "; and
WHEREAS, California Health & Safety Code Section
33413(c) (1) requires such dwelling units to remain affordable
for the longest feasible time, but for not less than 45 years
for homeownership units; and
WHEREAS, affordable housing cost is defined in California
Health and Safety Code Section 50052.5(b)(2), with the
components of affordable housing cost as found in Section 6920
of Title 25 of the California Code of Regulations; and
WHEREAS, Developer has received City approval to develop
102 attached and detached units on approximately 14.8 acres,
including the private street known as Fremont Street, generally
located south and east of said Fremont Street consistent with
the conditions of approval for Vesting Tentative Tract Map No.
5425 (TTM 5425) and Residential Planned Development Permit No.
2003 -02 (RPD 2003 -02), collectively the Project, and City
Council Resolution No. 2005 -2304, referred to as the Conditions
of Approval; and
WHEREAS, on May 23, 2005, the DEVELOPER and CITY entered
into a Development Agreement (Development Agreement) for the
Project; and
WHEREAS, in the Development Agreement, Developer agrees to
provide five units to moderate income households, nine units to
Ordinance No. 313
Page 44
low income buyers, and six units to very low income buyers of
approximately 1,600 square feet at sale prices and terms and
conditions as referenced in Sections 2. and 3. of this
Agreement.
NOW, THEREFORE, IT IS AGREED by and between the DEVELOPER and
the CITY as follows:
SECTION 1. The CITY shall be responsible for marketing
the affordable units, selecting and qualifying eligible buyers
for the units, and overseeing the escrow processes to sell the
affordable units to moderate, low income and very low income
households. In the event of termination of this Agreement,
Developer shall in any event comply with the Conditions of
Approval and all terms and conditions of the Development
Agreement.
SECTION 2. Terms of Sale.
2.1 The terms and conditions of the sale of twenty
(20) units in the Project to qualified moderate, low and very
low income buyers or City in lieu of said buyers shall be
consistent with the Development Agreement. The twenty (20) units
referenced above are collectively referred to as the affordable
units or affordable housing units.
2.2 DEVELOPER shall satisfy all mechanic's,
laborer's, materialman's, supplier's, or vendor's liens and any
construction loan or other financing affecting any unit or lot in
the Project which has been designated for an affordable unit,
before the close of escrow for that affordable unit.
2.3 DEVELOPER agrees if it sells any of the
affordable units directly to a qualified moderate, low or very
low income buyer, per Section 2.1. above, all requirements of
the buyer, including, but not limited to, completion of a CITY
approved homebuyer education training workshop, and CITY
approved documents for the transaction, including a promissory
note, deed of trust, and resale restriction agreement and option
to purchase (the "Affordability Documents "), shall be included
as a requirement of the sale. The language of all such
documents shall be approved by CITY at its sole discretion.
2.4 The parties agree that prior to and upon the sale
of an affordable unit to a qualified buyer or CITY, CITY may at
its sole discretion take any actions and impose any conditions
on buyer eligibility and on said sale or subsequent sale of the
Ordinance No. 313
Page 45
unit to ensure ongoing affordability to moderate, low and very
low income households and related matters. After the sale of an
affordable unit by DEVELOPER to a qualified buyer or CITY, CITY
shall have sole responsibility for approving any subsequent sale
of that housing unit and enforcing the Affordability Documents.
DEVELOPER further agrees that CITY has the sole discretion to
make all determinations on buyer eligibility including but not
limited to income and household size.
2.5 Developer agrees that the required very low
income, required low income, and the required moderate income
affordable units shall be provided by Developer and occupied by
qualified buyers (or at City's sole discretion sold to City) on
terms consistent with this agreement and the Development
Agreement as specified in the following schedule:
Prior to
Occupancy of
# of Very Low
Income Units
# of Low Income
Units
# of Moderate
Income Units
21St Unit
1
2
1
41St Unit
1
2
1
61St Unit
1
2
1
81St Unit
1
2
1
101St Unit
2
1
1
Total
6
9
5
2.6 The required twenty (20) affordable units within
the Project shall be located on unit (may also be referred to as
pad or lot) numbers 2, 4, 9, 18, 24, 46, 50, 54, 56, 60, 62, 67,
89, 94, 96, 98, 99, 100, 101, and 102. The City Manager or
designee may approve different unit numbers within the Project
so long as the unit contains no less than 1,600 square feet.
The CITY shall determine at its sole discretion which of the
affordable units within the Project will be sold to the nine (9)
qualified low income households, the six (6) very low income
households, and the five (5) moderate income households.
SECTION 3. Conditions of Purchase and Sale. If a
qualified moderate, low or very low income buyer is identified
by the CITY prior to or at the time of completion of any one of
the affordable units, and by the date on which final inspection
approval is issued for said unit, DEVELOPER shall open escrow
for the sale of said unit for the same sales price as herein
stipulated and subject to Section 2. above, and shall enter
escrow directly with the buyer identified by CITY, and proceed
to closing of said escrow. If a qualified moderate, low or very
Ordinance No. 313
Page 46
low income buyer has not been identified at the time DEVELOPER
receives its final inspection approval for and an affordable
unit in the Project, CITY agrees to purchase the affordable unit
required to be provided by DEVELOPER for the amount and at the
time specified in the Development Agreement.
SECTION 4. Quality of Construction. DEVELOPER warrants
that the quality of materials and construction techniques of the
affordable units sold to the CITY shall in all manner be
identical to that of all other units constructed in this Project
and subject to all Conditions of Approval and shall meet all
Building Codes.
SECTION 5. Amenities and Warranties. DEVELOPER
acknowledges that the affordable units will not be occupied by
the CITY but, if purchased by the CITY, will be sold to
qualified moderate, low or very low income buyer (s) DEVELOPER
agrees to provide the same amenities and home warranties
associated with the affordable units purchased by the CITY as
the amenities and home warranties associated with the market
rate units. DEVELOPER declares that all such warranties shall
inure to the benefit of and be enforceable by the ultimate
occupants of the affordable units, and that all warranties by
subcontractors and suppliers shall inure to the benefit of and
be enforceable by such occupants. The CITY shall have the same
choices of finish options as purchasers of market rate units in
this Project and final walk- through approval of condition of
unit before close of sale. Any options provided to buyers of
market rate units shall be provided to CITY or buyers) of the
affordable units, including, but not limited to, color and style
choices for carpeting and other floor coverings, counter tops,
roofing materials, exterior stucco and trim of any type,
fixtures, and other decorative items.
SECTION 6. Defense and Indemnity. DEVELOPER agrees to
indemnify, hold harmless and defend at its sole expense, with
counsel reasonably acceptable to CITY, any action brought
against it or CITY by a purchaser of an affordable unit for any
alleged construction defects or related problems, or any action
brought by any party to approve, extend or renew any permit,
related actions under CEQA, any subsequent permits to
implement /construct the Project and this Agreement. DEVELOPER
further agrees to reimburse CITY for any court costs and /or
attorneys' fees which CITY may be required by the court to pay
as a result of any such action. CITY may, at its sole
discretion, participate in the defense of any such action at
Ordinance No. 313
Page 47
CITY's cost, but such participation shall not relieve DEVELOPER
of its obligation under this Section.
SECTION 7. Waiver. DEVELOPER hereby covenants not to
bring any action against CITY to (a) attack, review, set aside,
void, or otherwise annul this Agreement, in whole or in part, or
(b) recover any compensation or obtain any relief for any
injury, damage, loss, or deprivation of any right alleged to
have been sustained as a result of CITY's action on any matter
related to this Agreement.
SECTION 8. Defaults and Remedies. Each of the
following shall constitute an "Event of Default" by the
DEVELOPER:
8.1.1 Failure by the DEVELOPER to duly perform,
comply with and observe any of the conditions, terms, or
covenants of TTM No. 5425 or RPD No. 2003 -02, or this Agreement,
or the Development Agreement, if such failure remains uncured
ten (10) days after written notice of such failure from the CITY
to the DEVELOPER in the manner provided herein or, with respect
to a default that cannot be cured within ten (10) days, if the
DEVELOPER fails to commence such cure within such ten (10) day
period or thereafter fails to diligently and continuously
proceed with such cure to completion.
8.1.2 Any representation or warranty contained in
this Agreement or in any certificate or report submitted to the
CITY by DEVELOPER proves to have been incorrect in any material
respect when made.
8.1.3 A court having jurisdiction shall have made or
rendered a decree or order (a) adjudging DEVELOPER to be
bankrupt or insolvent; (b) approving as properly filed a
petition seeking reorganization of DEVELOPER or seeking any
arrangement on behalf of DEVELOPER 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; (c)
appointing a receiver, trustee, liquidator, or assignee of the
DEVELOPER in bankruptcy or insolvency or for any of its
properties; or (d) directing the winding up or liquidation of
the DEVELOPER, 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.
Ordinance No. 313
Page 48
8. 1.4 The DEVELOPER 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 DEVELOPER is
diligently working to obtain a return or release of the property
and the CITY's interests hereunder are not imminently threatened
in the CITY's reasonable business judgment, then the CITY shall
not declare a default under this subsection.
8.1.5 The DEVELOPER shall have voluntarily suspended
its business or dissolved.
8.1.6 Should there occur any default declared by any
lender under any loan document or deed of trust relating to any
loan made in connection with the Project or property on which
Project is to be constructed, which loan is secured by a deed of
trust or other instrument of record.
8.2 Liens. DEVELOPER shall pay and promptly
discharge when due, at DEVELOPER's cost and expense, all liens,
encumbrances and charges upon the Project or the underlying
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), 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. DEVELOPER shall have the right to contest in good
faith the validity of any such lien, encumbrance or charge,
provided that within ten days after service of a stop notice or
ninety days after recording of a mechanic's lien, DEVELOPER
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 DEVELOPER
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
Ordinance No. 313
Page 49
any foreclosure sale. If DEVELOPER 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 amount or
otherwise giving security for such claim, in such manner as is
or may be prescribed by law. DEVELOPER shall, immediately upon
demand therefor 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.
8.3 Costs of Enforcement. If any Event of Default
occurs, CITY may employ an attorney or attorneys to protect its
rights hereunder. Subject to California Civil Code Section
1717, DEVELOPER promises to pay to CITY, 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 CITY in
connection with the enforcement of the obligations secured
hereby, whether or not such enforcement includes the filing of a
lawsuit.
8.4 Remedies Not Exclusive. CITY shall be entitled
to enforce payment and performance of any indebtedness or
obligation of DEVELOPER arising under this Agreement and to
exercise all rights and powers under this Agreement or any law
now or hereafter in force, notwithstanding some or all of the
said indebtedness and obligations secured hereby may now or
hereafter be otherwise secured, whether by guaranty, mortgage,
deed of trust, pledge, lien, assignment or otherwise. Neither
the acceptance of this Agreement nor its enforcement by court
action shall prejudice or in any manner affect CITY's right to
realize upon or enforce any other security now or hereafter held
by CITY, it being agreed that CITY shall be entitled to enforce
this Agreement and any other security now or hereafter held by
CITY, as applicable, in such order and manner as CITY may in its
absolute discretion determine. No remedy herein conferred upon
Ordinance No. 313
Page 50
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
it may pursue inconsistent remedies.
8.5 Enforcement; Specific Performance. The CITY
shall have the right to mandamus or other suit, action or
proceeding at law or in equity to require the DEVELOPER 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.
8.6 Right of Contest. The DEVELOPER shall have the
right to contest in good faith any claim, demand, levy, or
assessment the assertion of which would constitute an Event of
Default hereunder. Any such contest shall be prosecuted
diligently and in a manner unprejudicial to the CITY or the
rights of the CITY hereunder.
8.7 Action at Law; No Remedy Exclusive. 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 DEVELOPER under this
Agreement. No remedy herein conferred upon or reserved by the
CITY is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this
Agreement or now or hereafter existing at law, in equity or by
statute. 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.
8.8 Termination. The City's rights and remedies set
forth herein shall include as a cumulative remedy the right to
terminate this Agreement if an Event of Default is not cured,
pursuant to section 8.1 herein. Such termination shall, at a
Ordinance No. 313
Page 51
minimum, require full compliance by the DEVELOPER with the
Conditions of Approval and all terms and conditions of the
Development Agreement.
SECTION 9. Warranty of Authorized Signatories. Each of
the signatories hereby warrants and represents that he or she is
competent and authorized to execute this Agreement on behalf of
the party for whom he or she purports to sign.
SECTION 10. Assignment. DEVELOPER agrees that CITY, at
CITY's sole discretion, may assign this Agreement to the
Redevelopment Agency of the City of Moorpark (AGENCY).
SECTION 11. Miscellaneous.
(a) Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the Parties and their
respective successors, assigns, legal representatives, parent,
subsidiary, affiliated and related entities, officers,
directors, principals, agents, servants, employees,
representatives, and all persons, firms, associations and /or
corporations connected with them, including, without limitation,
their insurers, sureties and /or attorneys.
(b) Attorneys' Fees. In the event that any action, suit
or other proceeding is instituted to remedy, prevent or obtain
relief from a breach of this Agreement, or arising out of a
breach of this Agreement, the prevailing party shall be entitled
to recover reasonable attorneys' fees and costs incurred in such
action, suit or other proceeding, including any and all appeals
or petitions therefrom.
(c) Severability. Should any part, term or provision of
this Agreement be declared or determined by any court to be
illegal or invalid, the validity of the remaining parts, terms
or provisions shall not be affected thereby and said illegal or
invalid part, term or provision shall be deemed not to be a part
of this Agreement.
(d) Assistance of Counsel. DEVELOPER and CITY acknowledge
that: (i) they have been represented by independent counsel in
connection with this Agreement; (ii) they have executed this
Agreement with the advice of such counsel; and (iii) this
Agreement is the result of negotiations between the Parties and
the advice and assistance of their respective counsel. Each of
the Parties has equally participated in the drafting and
preparation of this Agreement, and it is the intention of the
Ordinance No. 313
Page 52
Parties that the construction or interpretation of this
Agreement shall be made without reference to the Party who
drafted any portion or particular provision of this Agreement or
the relative size and or bargaining power of the Parties.
SECTION 12. Moratorium on Development. Nothing in this
Agreement shall prevent CITY, whether by the City Council or
through the initiative or referendum process, from adopting or
imposing a moratorium on the processing and issuance of
Subsequent Approvals and building permits and on the finalizing
of building permits by means of a final inspection or
certificate of occupancy, provided that the moratorium is
adopted or imposed (i) on a City -wide basis to all substantially
similar types of development projects and properties with
similar land use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage, including
without limitation a shortage of water, sewer treatment
capacity, electricity or natural gas.
SECTION 13. Waiver of Protest Rights. DEVELOPER agrees
that any fees and payments for this Project shall be made
without reservation, and Developer expressly waives the right to
payment of any such fees under protest pursuant to California
Government Code Section 66020 and statutes amendatory or
supplementary thereto, or any other applicable state or federal
law.
SECTION 14. Action at Law; No Remedy Exclusive. 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 DEVELOPER under
this Agreement. No remedy herein conferred upon or reserved by
the CITY is intended to be exclusive of any other available
remedy or remedies, but each and every such remedy shall be
cumulative and shall be in addition to every other remedy given
under this Agreement or now or hereafter existing at law, in
equity or by statute. 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.
Ordinance No. 313
Page 53
SECTION 15. Notices. All notices and other
communications which a party desires or is required to give
respecting this Agreement must be in writing addressed to the
recipient party at its address set forth beneath its signature
to this Agreement and must be given personally (including by
commercial messenger or courier) or by First Class United States
Mail, postage prepaid. Notices shall be deemed to have been
effectively given, if given personally, upon receipt (or upon
attempted delivery if receipt is refused), and if mailed, three
(3) business days following deposit in the United States Mail.
A party may change its address for notices only by a notice
given in the foregoing manner.
SECTION 16. Joint Preparation. This agreement shall be
deemed to have been prepared jointly and equally by the Parties,
and it shall not be construed against any Party on the ground
that the Party prepared the Agreement or caused it to be
prepared.
SECTION 17. Amendments and Waivers. No term or
provision of this Agreement can be amended or waived, either
orally or by a course of conduct, but only by an instrument in
writing signed by the party against whom enforcement of such
amendment or waiver is sought.
SECTION 18. Entire Agreement. This Agreement, the
Development Agreement, and the Conditions of Approval for this
Project constitute the entire agreement and understanding of the
parties with respect to its subject matter and they supercede
all prior and contemporaneous agreements and understandings of
the parties with respect to that subject matter. Should any
provision of this agreement be in conflict with any provision of
the Development Agreement, the Development Agreement shall
prevail.
SECTION 19. Headings and Attachments. The title of this
Agreement and the headings of its sections are for convenience
of reference only and are not to be referred to in interpreting
or construing this Agreement. However, all attachments and
exhibits to this Agreement, as well as the Recitals, are a part
of this Agreement.
SECTION 20. Governing Law and Interpretation. This
Agreement is to be governed by and construed in accordance with
the laws of the State of California. No term or provision of
this Agreement is to be construed against a party by reason of
Ordinance No. 313
Page 54
its having drafted the same. This Agreement is made, entered
into and executed in Ventura County, California, and any action
filed in any court for the interpretation, enforcement or other
action arising from any term, covenant or condition herein shall
be filed in Ventura County.
CITY:
CITY OF MOORPARK
No
Patrick Hunter
Mayor
Attest:
LIZZ
City Clerk
City of Moorpark
Address: 799 Moorpark Avenue
Moorpark, California 93021
DEVELOPER:
SHEA HOMES, LIMITED PARTNERSHIP
No
J.F. Shea, Co., Inc., a Nevada
Corporation, its General Partner
Shea Homes, Limited Partnership
30699 Russell Ranch Road
Suite 290
Westlake Village, CA 91361
Attn: Steve Seemann
Assistant Secretary
Shea Homes, Limited Partnership
30699 Russell Ranch Road
Suite 290
Westlake Village, CA 91361
Attn: Jeff Palmer
Assistant Secretary
Jackson, DeMarco & Peckenpaugh
2030 Main Street, Suite 1200
Irvine, CA 92623
Attn: Andrew Bernstein, Esq.
Ordinance No. 313
Page 55
STATE OF CALIFORNIA )
COUNTY OF VENTURA )
CITY OF MOORPARK )
I, Deborah S.
Moorpark, California
that the foregoing
Council of the City
20th day of April,
following vote:
ss.
Traffenstedt, City Clerk of the City of
a, do hereby certify under penalty of perjury
Ordinance No. 313 was adopted by the City
of Moorpark at a regular meeting held on the
2005, and that the same was adopted by the
AYES: Councilmembers Mikos, Millhouse, Parvin, and
Mayor Pro Tempore Harper
NOES: None
ABSENT: Mayor Hunter
ABSTAIN: None
WITNESS my hand and the official seal of said City this 27th day
of April, 2005.
Deborah S. Traffenste t, City Clerk
(seal)