HomeMy WebLinkAboutORD 346 2006 1206ORDINANCE NO. 346
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT
AGREEMENT BETWEEN THE CITY OF MOORPARK AND
TOLL LAND XX LIMITED PARTNERSHIP FOR 43.04 ACRES
NORTH OF CHAMPIONSHIP DRIVE AND EAST OF GRIMES
CANYON ROAD
WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State
Planning and Zoning Law provides that cities may enter into contractual obligations
known as Development Agreements with persons having equitable interest in real
property for development of that property; and
WHEREAS, the owners of the land with an application for Residential Planned
Development Permit No. 2003 -04, General Plan Amendment 2003 -04, Zone Change
2003 -03, Tentative Map No. 5463 have applied to the City of Moorpark to seek a
Development Agreement with the City pursuant to Chapter 15.40 of the Moorpark
Municipal Code; and
WHEREAS, the Planning Commission of the City of Moorpark on June 27, 2006,
adopted Resolution No. PC 2006 -502 recommending to the City Council approval of
Development Agreement No. 2004 -01, proposed in conjunction with the project initiated
by Toll Brothers, Inc., consisting of Residential Planned Development Permit No. 2003-
04, General Plan Amendment No. 2003 -04, Zone Change No. 2003 -03, Tentative Tract
Map No. 5463; and
WHEREAS, the City Council on November 15, 2006, adopted the Mitigated
Negative Declaration for the Toll Brothers, Inc. project consisting of Residential Planned
Development Permit No. 2003 -04, General Plan Amendment No. 2003 -04, Zone
Change No. 2003 -03, Tentative Tract Map No. 5463, and Development Agreement No.
2004 -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, duly noticed public hearings were conducted by the City Council on
July 19, 2006, August 2, 2006, September 20, 2006, and November 15, 2006 to
consider the Development Agreement and to accept public testimony related thereto;
and
WHEREAS, the City Council has considered all points of public testimony
relevant to the Development Agreement and has given careful consideration to the
content of the Development Agreement, and has reached a decision on the matter.
Ordinance No. 346
Page 2
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES ORDAIN AS FOLLOWS:
SECTION 1. The City Council of the City of Moorpark does hereby find as
follows:
A. The Development Agreement is consistent with the General Plan as
amended by General Plan Amendment No. 2003 -04.
B. The Development Agreement and the assurances that said agreement
places upon the project are consistent with the intent and provisions of the Mitigated
Negative Declaration.
C. The Development Agreement is necessary to ensure the public health,
safety and welfare.
SECTION 2. The City Council hereby adopts Development Agreement No.
2004 -01 (attached hereto) between the City of Moorpark, a municipal corporation, and Toll
Land XX 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. Upon the effective date of this ordinance, the Community
Development Director shall cause the property that is the subject of the Development
Agreement to be identified on the Zoning Map of the City by the designation "DA"
followed by the dates of the term of said Agreement.
SECTION 4. If any section, subsection, sentence, clause, phrase, part or
portion of this Ordinance is for any reason held to be invalid or unconstitutional by any
court of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Ordinance. The City Council declares that it would have adopted this
Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof,
irrespective of the fact that any one or more section, subsections, sentences, clauses,
phrases, parts or portions be declared invalid or unconstitutional.
SECTION 5. This Ordinance shall become effective thirty (30) days after its
passage and adoption.
SECTION 6. The City Clerk shall certify to the passage and adoption of this
ordinance; shall enter the same in the book of original ordinances of said City; shall make
a minute 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
Ordinance No. 346
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Star a newspaper of general circ tion, as defined in Se tion 6008 of t e Government
Code, for the City of Moorpark, a which is hereby designa ed for that pose.
PASSED AND ADO
ATTEST:
D this 6th day of December
unter,
Attachment:
EXHIBIT A - Development Agreement No. 2004 -01
Ordinance No. 346
Page 4
DEVELOPMENT AGREEMENT
EXHIBIT A
This Development Agreement ( "the Agreement ") is made and entered into on
by and between the CITY OF MOORPARK, a municipal
corporation, (referred to hereinafter as "City ") and Toll Land XX Limited Partnership, the
owner of real property within the City of Moorpark generally referred to as Vesting
Tentative Tract Map 5463 (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:
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 -04 ( "GPA 2003 -04 "), for approximately 43.04
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 -03 ( "ZC 2003 -03 ").
1.3. GPA 2003 -04, ZC 2003 -03, Vesting Tentative Tract Map 5463 (Tract
5463) and Residential Planned Development Permit No. 2003 -04
(RPD2003 -04) [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
Ordinance No. 346
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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 -04.
1.7. On June 28, 2005, the Planning Commission of City commenced a
duly noticed public hearing on this Agreement, and at the conclusion of
the hearing recommended approval of the Agreement.
1.8. On July 19, 2006, the City Council commenced a duly noticed public
hearing on this Agreement, and at the conclusion of the hearing on
November 15, 2006, approved first reading of the ordinance and on
December 6, 2006 adopted the Agreement by Ordinance No. 346 ( "the
Enabling Ordinance ").
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
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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 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 Propert y. 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
Ordinance No. 346
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the plan check or 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 applicable to the Property are set
forth in the Project Approvals and this Agreement.
5. Vesting of Development Rights.
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
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,
Ordinance No. 346
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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;
(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
Ordinance No. 346
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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.
Notwithstanding the foregoing, in the event that Developer has not
acquired the 4.84 + acres of land, APN 502014003 (the "Acquisition
Parcel ") prior to the second anniversary of the approval date of the
Vesting Tentative Map, the Vesting Tentative Map shall expire, unless
developer applies for an additional one year extension to such map,
the granting of which shall be subject to the City Council's discretion,
based, in part, on Developer's demonstration of good faith efforts to
acquire the Acquisition Parcel. Should the Council decide not to
extend the map, or if extended, should developer fail to acquire the
Acquisition Parcel prior to the extended period, the map shall expire,
and this Agreement shall terminate. Thereafter, Developer waives any
and all claims or causes of action for, and the right to challenge, a
rezoning and general plan land use redesignation of the Property by
the City to the zoning and land use designation that existed on the
Property prior to the Project Approvals. This waiver provision shall
survive the termination of the 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 Community Development Department prior to the expiration
of that Approval. Each such Subsequent Approval shall 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.
Ordinance No. 346
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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.
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.
Ordinance No. 346
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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 Nine -
Thousand Five - Hundred Dollars ($9,500.00) per residential unit and
Forty- Two - Thousand Seven - Hundred Fifty Dollars ($42,750.00) per
gross acre of institutional land on which the use is located. The fee
shall be adjusted annually commencing July 1, 2008 by the larger
increase of a) or b) as follows:
a) The Consumer Price Index (CPI) increase shall be determined
by using the information provided by the U.S. Department of
Labor, Bureau of Labor Statistics, for all urban consumers within
the Los Angeles /Riverside /Orange County metropolitan area
during the prior year. The calculation shall be made using the
month of October over the prior October.
b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index for Selected California
Construction Items for the twelve (12) month period available on
December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for
any annual indexing, the 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
Ordinance No. 346
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sole and unfettered discretion. On the operative date of this
Agreement, the amount of the Citywide Traffic Fee shall be Six -
Thousand Six - Hundred Dollars ($6,600.00) per residential unit, and
Twenty- Nine - Thousand, Seven - Hundred Dollars ($29,700.00) per acre
of institutional land on which the institutional use is located.
Commencing on January 1, 2008, and annually thereafter, the
contribution amount shall be increased to reflect the change in the
Caltrans Highway Bid Price Index for Selected California Construction
Items for the twelve (12) month period available on December 31 of
the preceding year ( "annual indexing "). In the event there is a decrease
in the referenced Index for any annual indexing, the current amount of
the fee shall remain until such time as the next subsequent annual
indexing which results in an increase.
6.5. 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, Four - Hundred Dollars
($2,400.00) per residential unit, and Ten - Thousand Eight- Hundred
Dollars ($10,800.00) per gross acre of institutional land on which the
institutional use is located. The fee shall be adjusted annually
commencing on January 1, 2008, by the larger increase of a) or b) as
follows:
a) The Consumer Price Index (CPI) increase shall be determined
by using the information provided by the U.S. Department of
Labor, Bureau of Labor Statistics, for all urban consumers within
the Los Angeles /Riverside /Orange County metropolitan area
during the prior year. The calculation shall be made using the
month of October over the prior October.
b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index for Selected California
Construction Items for the twelve (12) month period available on
December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for
any annual indexing, the Community Services Fee shall remain at its
then current amount until such time as the next subsequent annual
indexing which results in an increase.
Ordinance No. 346
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6.6. As a condition of the issuance of a grading permit for each residential
or institutional use within the boundaries of the Property, Developer
shall pay City a Public Facilities fee as described herein (the "Public
Facilities Fee "). The Public Facilities Fee may be expended by City in
its sole and unfettered discretion. On the operative date of this
Agreement, the amount of the Public Facilities Fee shall be Twelve -
Thousand Dollars ($12,000.00) per residential unit and Fifty -Four-
Thousand Dollars ($54,000) per gross acre of institutional land on
which the institutional land is located, and shall be fully paid for the
entire project or institutional use prior to the issuance of the grading
permit. The fee shall be adjusted annually commencing January 1,
2008 by the larger increase of a) or b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County 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 this
Agreement became effective (e.g., if this Agreement became
effective in October, then the month of June is used to calculate
the increase).
b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index for Selected California
Construction Items for the twelve (12) month period available on
December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for
any annual indexing, the Public Facilities Fee shall remain at its then
current amount until such time as the next subsequent annual indexing
which results in an increase.
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
Twenty- Four - Thousand Dollars ($24,000.00) for each residential
dwelling unit and Fifty Cents ($0.50) per square foot of each building
used for institutional purposes within the Property. The fee shall be
adjusted annually commencing January 1, 2008 by the larger increase
of a) or b) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Ordinance No. 346
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Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County 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 this
Agreement became effective (e.g., if this Agreement became
effective in October, then the month of June is used to calculate
the increase).
b) The calculation shall be made to reflect the change in the
Caltrans Highway Bid Price Index for Selected California
Construction Items for the twelve (12) month period available on
December 31 of the preceding year.
In the event there is a decrease in both of the referenced Indices for
any annual indexing, the Public Facilities Fee shall remain at its then
current amount until such time as the next subsequent annual indexing
which results in an increase.
6.8. Provided that prior to recordation of the first final map for Tract 5463 or
March 31, 2008, 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 5463, 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 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 agrees to provide a total of twelve (12) affordable housing
units; eight (8) units for Tract 5463 (four (4) low and four (4) very low)
and four (4) units per the Development Agreement for Tract 5464 (two
Ordinance No. 346
Page 15
(2) low and two (2) very low), as further described in this subsection
6.9.
To partially meet this obligation, the Developer agrees to transfer clear
title to the approximately 0.34 acre and approximately 0.16 acre
parcels known as 396 Charles Street in partial fulfillment of the
requirements for affordable housing as indicated in section 6.9 of this
Agreement. City will credit Developer five (5) affordable units (three
(3) low and two (2) very low units) toward the total required by this
Agreement and the Development Agreement for Tract 5464. Prior to
the issuance of a grading permit for either Tract, Developer shall
transfer the property to the City free and clear of any and all
encumbrances and structures. Should grading permit for Tract 5463
precede the grading permit for Tract 5464, the credit for the five (5)
affordable units shall be applied to Tract 5463 Should the grading
permit for Tract 5464 precede grading permit for Tract 5463, the
requirement for four (4) affordable units will be fulfilled. At the
Developer's option, the credit for the remaining (fifth (5th)) affordable
unit may be applied toward the fulfillment of one (1) affordable housing
unit for Tract 5463.
To meet its obligation for the remaining seven (7) affordable units, the
Developer shall also provide three (3) four (4) bedroom and two (2)
bath single family detached units with a minimum of 1,200 square feet
to be sold to buyers who meet the criteria for low income (80 percent
or less of median income); and four (4) four (4) bedroom and two (2)
bath single family detached units with a minimum of 1,200 square feet
to be sold to buyers who meet the criteria for very low income (50
percent or less of median income). All single family detached 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 the City
RPD zone, include concrete roof tiles, and other amenities typically
found in moderate priced housing in the City (e.g., air
conditioning /central heating, washer /dryer hookups, garbage disposal,
built -in dishwasher, concrete driveway, automatic garage door opener).
The duplex type units in Tracts 3841, 3070 -2, 3070 -3, 3070 -4, 4170,
and 5133 are considered to be single family detached units for the
purposes of this subsection 6.9.
Subject to City's sole discretion, this obligation, in whole or part, may
be met by providing attached for sale units in lieu of single family
detached units at the ratio of one and one -half (11/2) attached for sale
unit for each single family detached unit. In the event such substitution
Ordinance No. 346
Page 16
results in any fraction of a unit, then the requirement shall be rounded
up to the next higher whole number (e.g. the requirement of 3 single
family detached units are met by 41/2 attached for sale units, then 5
attached for sale units are required). Each of the substituted units
shall be at the income level of the units for which they are being
substituted and shall contain at least 1,200 square feet, three
bedrooms and attached or assigned parking for two parking spaces.
The approval of such substituted units may require refurbishment or
replacement of carpeting, flooring, cabinets, windows, appliances and
other items to bring the units up to standards as determined by the
Community Development Director at his or her sole discretion. Should
the Developer acquire the attached units within two (2) years from the
operative date of this Agreement, and offer them for sale to the City as
provided for in subsection 6.9, the attached for sale units in lieu of
single family detached units shall be at a ratio of one and one - quarter
(1 1/4) attached for sale unit for each single family detached unit.
The attached for sale units shall be a minimum of three bedrooms and
a minimum of 1200 square feet of floor area.
Prior to acquiring any housing unit to meet the obligations of this
subsection 6.9, Developer must first receive the written approval of
City Manager or his /her authorized representative that the unit meets
the requirements of this Development Agreement and any applicable
Affordable Housing Agreement for Tract 5463. Developer agrees that
lack of a written response from City as specified in subsection 7.7 of
this Agreement is deemed a rejection of the Developer's request.
Developer may construct rather than purchase the housing units
required of it pursuant to this subsection 6.9 so long as Developer
meets all requirements of this Agreement and the proposed project
and property on which the units are proposed to be constructed
conform to the City's General Plan, Zoning Codes, and the Moorpark
Municipal Code. Nothing in this Agreement requires City to consider a
General Plan Land Use Amendment, Zone Change, or any other land
use entitlement to allow or permit said proposed construction.
Developer further agrees that it has the obligation to provide the
required number of 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 is specifically exempt from the requirements of subsection 7.2 of
this Agreement.
Ordinance No. 346
Page 17
Prior to recordation of the Final Map for this Project, the City Council in
its sole and unfettered discretion shall approve an Affordable Housing
Implementation and Resale Restriction Plan (Plan) that provides
policies and guidelines to ensure that all of the required affordable
housing units are provided consistent with this Agreement and
applicable State laws and remains affordable for the longest feasible
time. The Plan shall include but not be limited to the following items:
Initial Purchase Price, market value, buyer eligibility, affordability and
resale covenants and restrictions, equity share and second trust deed
provisions, respective role of City and Developer, the responsibility of
providing the affordable units by each developer in the event of
successors and /or assigns to this Agreement, the final number of
single family detached and single family attached units that shall be
provided to meet Developer's affordable housing obligation, quality of
and responsibility for selection of amenities and applicability of home
warranties in the event Developer constructs housing units or
purchases newly constructed units from other developers /builders to
meet all or a portion of its obligation and any other items determined
necessary by the City. The Developer and City shall, prior to the
occupancy of the first residential unit for the Project, execute an
Affordable Housing Agreement that incorporates the Plan in total and
is consistent with this Agreement. Developer shall pay the City's direct
costs for preparation and review of the Affordable Housing
Implementation and Resale Restriction Plan and the Affordable
Housing Agreement up to a maximum of Ten - Thousand Dollars
($10,000.00).
The three (3) low income units and four (4) very low income units shall
be provided by Developer and occupied by qualified buyers (or at
City's sole discretion sold to City) prior to occupancy of the 25th
residential unit in Tract 5463 and the 18th residential unit in Tract No.
5464, or the 39th unit of the combined Tracts, whichever first occurs.
All units shall meet the criteria of all applicable State laws to qualify as
newly affordable to low income and very low income persons (in the
quantity as specified in this Agreement) to satisfy a portion of the City's
RHNA obligation and if within the Moorpark Redevelopment Agency
project area to satisfy a portion of the 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 any
Ordinance No. 346
Page 18
Affordable Housing Agreement required by this Agreement or the
conditions of approval for Vesting Tentative Tract Map No. 5463 and /or
RPD No.2003 -04, then the Affordable Housing Agreement shall
prevail.
All affordable housing units provided under this subsection 6.9 that
received a final inspection prior to January 1, 2007, must conform to
the Uniform Building Code in effect as of July 1, 1983. Developer shall
pay at its sole cost and expense for a city selected contractor to
perform a home inspection and /or occupancy inspection by the City
Building Official, and Developer at its sole cost and expense shall
make any needed corrections to conform to inspection reports and
current building codes. At Developer's sole cost and expense, the roof
shall be inspected by a city selected contractor and if necessary as
determined by City at its sole discretion repaired or replaced by a city
selected licensed roofing contractor and certified to have no less than
a 20 -year life. Developer at its sole cost and expense shall purchase a
standard home warranty policy for a three -year period commencing on
the date the unit is first sold to a qualified low or very low income
household and shall include but not be limited to coverage of heating
and air conditioning systems, automatic garage door opener, and all
built -in appliances and include a deductible /service call amount of no
more than One Hundred Dollars ($100.00) per service request. For
these units, City may approve a composition shingle roof in lieu of a
concrete tile roof if all other provisions of this subsection 6.9 are met.
In no event shall a wood shake or shingle roof be approved.
For housing units constructed by Developer to meet its obligation
under this subsection 6.9 or acquired by Developer that were not
previously occupied (i.e. built after the Operative Date of this
Agreement and either not previously occupied or occupied by a bona
fide buyer for less than twelve months), Developer agrees to provide
the same home warranties associated with other units in the same
project as the constructed or purchased unit, or the maximum time
required by State law, whichever is longer, 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 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
Ordinance No. 346
Page 19
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 exceed $100.00, 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 unit.
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. As provided in Section 50052.5(h) of the
California Health and Safety Code, a household of five (5) is
considered appropriate for a four bedroom unit, so pricing is based on
a household of five (5) no matter what size household actually
purchases the unit. The monthly "affordable housing cost" would be
30% times 70% of $85,900, the current median income for a
household of five (5) in Ventura County, divided by twelve (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 would be $171,000 under
current market conditions, based upon the following assumptions:
Low Income Buyer
Item
Detail
Amount
Affordable Sales Price
$171,000
Down Payment
5% of Affordable
Sales Price
$8,550
Loan Amount
Affordable Sales
Price less down
a ment
$162,450
Interest Rate
6.25%
Property Tax
1.25% of Initial
Purchase Price
$178/mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$20 /mo.
Utilities
$209 /mo.
The assumptions associated with the above purchase price figures for
low income households include a 5% down payment, based on
Ordinance No. 346
Page 20
Affordable Sales Price of $171,000, mortgage interest rate of 6.25 %,
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 $20 per
month, and utilities of $209 per month.
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. As provided in Section 50052.5(h)
of the California Health and Safety Code, a family of five is considered
appropriate for a four bedroom unit, so pricing is based on a household
of 5, no matter what size household actually purchases the unit. The
monthly "affordable housing cost" would be 30% times 50% of
$85,900, the current median income for a household of five (5) in
Ventura County, divided by twelve (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 5 would be $107,000 under current market
conditions, based upon the following assumptions:
Very Low Income Buyer
Item
Detail
Amount
Affordable Sales Price
$107,000
Down Payment
3% of Affordable
Sales Price
$5,350
Loan Amount
Affordable Sales
Price less down
a ment
$101,650
Interest Rate
6.25%
Property Tax
1.25% of Affordable
Sales Price
$111 /mo.
HOA
$100 /mo.
Fire Insurance
$20 /mo.
Maintenance
$20 /mo.
Utilities
$209 /mo.
The assumptions associated with the above purchase price figures for
very low income households include a 5% down payment, based on
Affordable Sales Price of $107,000, mortgage interest rate of 6.25 %,
no mortgage insurance, property tax rate of 1.25 %, based on
Affordable Sales Price, homeowners' association dues of $100 per
Ordinance No. 346
Page 21
month, fire insurance of $20 per month, maintenance costs of $20 per
month, and utilities of $209 per month.
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 both 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. The
Affordable Housing Implementation and Resale Restriction Plan shall
address this potential change.
In the event the City, at its sole discretion purchases one or more of
the units from Developer in lieu of a qualified buyer, the Affordable
Sales Price shall be based on a household size of four (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 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, shall have sole
responsibility for approving any subsequent sale of that housing unit.
Developer shall pay closing costs for each unit, not to exceed six
thousand three hundred dollars ($6,300.00). Beginning July 1, 2008,
and on July 1St for each of fifteen subsequent years, the maximum
$6,300.00 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 /Riverside /Orange County
metropolitan area during the prior year. The calculation shall be made
using the month of December over the prior month of December. In
the event there is a decrease in the CPI for any 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.
Ordinance No. 346
Page 22
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 Eight- Hundred Dollars
($1,800.00) per residential unit to be paid prior to the issuance of each
building permit for the first residential unit in Tract 5463. Commencing
on January 1, 2007, and annually thereafter the Air Quality Fee shall
be adjusted 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
/Riverside /Orange County metropolitan area during the prior year. The
calculation shall be made using the month of December over the prior
month of December. In the event there is a decrease in the CPI for any
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
Community Development Director 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,
Ordinance No. 346
Page 23
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 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 5463 and RPD2003 -04.
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 shall be made without reservation, and Developer
expressly waives the right to payment of any such fees under protest
Ordinance No. 346
Page 24
pursuant to California Government Code Section 66020 and statutes
amendatory or supplementary thereto. Developer further agrees that
the fees it has agreed to pay pursuant to subsections 6.3, 6.5, 6.6, 6.9,
6.23, and 6.26 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. 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.
6.21. In the event any of the "referenced Index" or "CPI" referred to in any
portion of Section 6 above, 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.
Ordinance No. 346
Page 25
6.22. The Developer shall improve both sides of Grimes Canyon Road to its
ultimate right -of -way from Championship Drive north to northern City
limits; including undergrounding of all utilities, including all electrical
lines of 66 kv or less. Transition paving shall be provided north of the
City limits on both sides of the street. The developer shall pay all City
costs for acquisition of the properties needed for construction of these
improvements; including but not limited to legal, engineering, planning,
and appraisal costs in addition to the costs for acquisition of properties.
Fifteen percent (15 %) shall be added to all City out -of- pocket expenses
for the acquisition costs, excluding the actual cost of the properties.
Such improvement shall be completed within ninety (90) days of
obtaining the real property needed for said improvement or receipt of
all permits required for the improvement. Such improvements must
start prior to issuance of a building permit for the first (1 s) dwelling unit
and shall be completed prior to the issuance of the building permit for
the tenth (10th) dwelling unit for the Project.
6.23. Pursuant to approved MND and MMRP, prior to recordation of the first
Final Tract Map for the Property, initiation of rough grading or issuance
of any subsequent permits, the applicant, shall purchase and dedicate
fee title for seventy -two (72) acres of open space in lieu of providing
on -site open space dedication pursuant to Section 17.38.080 of the
Hillside Management Ordinance. Prior to purchase and dedication, the
City Council shall approve the location of the proposed open space
land. At City's sole discretion, in lieu of the purchase of the seventy -
two (72) acres of open space, Developer shall pay two million six
hundred eighty thousand dollars ($2,680,000.00) to City to be used in
its sole and unfettered discretion for open space preservation
purposes. Six hundred seventy thousand dollars ($670,000.00) shall
be paid to the City no later than one year from the operative date of
this Agreement or upon the recordation of the Final Map, whichever
occurs first. Subsequent annual payments of six hundred seventy
thousand dollars ($670,000.00) shall be made for three years from the
annual anniversary of the first payment. The fee shall be adjusted
annually commencing January 1, 2008 by the larger increase of a), b),
or c) as follows:
a) The CPI increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of Labor
Statistics, for all urban consumers within the Los
Angeles /Riverside /Orange County 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 this
Agreement became effective (e.g., if this Agreement became
Ordinance No. 346
Page 26
effective in October, then the month of June is used to
calculate the increase).
b) The annual adjustment shall be determined by any increase in
the median price of single - family detached for -sale housing in
Ventura County as most recently published by Data Quick
(Housing Index) for the previous twelve (12) month period.
C) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF) calculated as follows: The
sum of the quarterly effective yield amounts paid by LAIF for
the City's Pooled Money Investment Account for the most
recent four (4) calendar quarters divided by four (4).
In the event there is a decrease in all of the referenced Indices 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.
6.24. Prior to the occupancy of the 49th unit Developer shall pay City the cost
installing of a minimum two (two) inch rubberized asphalt overlay of
Championship Drive from Grimes Canyon Road to Walnut Canyon
Road. Cost of said rubberized overlay shall include the cost of the
overlay, any remedial work and the estimated work to perform the
overlay and shall be subject to the approval of the City Engineer. The
cash payment shall be in an amount equivalent to the work described
above, plus fifteen percent (15 %). If Tract 5464 has made the
payment for this purpose then the obligation is considered to be
satisfied.
6.25. Concurrent with the recordation of the Final Map, a Conservation
Easement shall be granted for all portions of the Property zoned Open
Space, pursuant to California Civil Code Section 815 et seq., to
preserve the natural, scenic and open space character of the property
in an undeveloped condition; said easements shall run with the
property and be binding upon grantors and their successors and
assigns; and all development rights shall be dedicated to the city of
Moorpark. The Conservation Easement shall be granted and
conveyed to the city of Moorpark for permanent preservation of the
natural, scenic and open space character of all lots zoned Open
Space, and no agriculture, extraction of subsurface mineral resources,
excavation, drilling, pumping, mining, or similar activity shall be allowed
in any portion of said conservation easements. The Conservation
Easement shall be recorded on the Final Map or by separate
instrument as determined by the City Manager.
Ordinance No. 346
Page 27
6.26. Developer shall provide an easement to the City for a City Welcome
Sign on the Project site at a location satisfactory to the Community
Development Director. The easement shall provide for the location
and maintenance of the sign. Developer agrees to pay Twenty -Five
Thousand Dollars ($25,000.00) to the City for the construction and
erection of the sign. The funds may be expended by City in its sole
and unfettered discretion. The fee shall be paid prior to occupancy of
the first residential unit. Developer agrees that design of the sign,
including the lighting, shall be at the City's sole discretion. The
maintenance of the sign shall be through the landscape maintenance
district.
6.27. All major construction traffic, heavy equipment, and commercial
vehicles shall enter and exit the Project from Grimes Canyon Road.
6.28. Developer agrees, within six (6) months of the operative date of this
Agreement, the control and maintenance of both entry monuments at
the intersection of Grimes Canyon Road and Championship Drive, and
both entry monuments at the intersection of Walnut Canyon Road and
Championship Drive, shall be transferred to the master Homeowner's
Association for Country Club Estates (Tract 4928). Such transfer shall
be either in the form of an easement, in fee simple, or other form
acceptable to City. Notification shall be provided by Developer to the
Community Development Director upon completion of the transfer.
6.29. Developer agrees to provide agricultural buffer fencing along the joint
property line between the existing Moorpark Country Club Estates
(Tract 4928) and the adjacent agricultural uses immediately to the
north. Developer also agrees to provide agricultural buffer fencing
along the joint property line between Tract 5463 and Tract 5464 and
the adjacent agricultural uses. The location, type, and installation of
said fencing and landscaping shall be subject to review and approval
of the Community Development Director. If any fencing is located on
the adjacent agricultural property, said property owner shall agree, in
writing, to maintain the fencing in a good state of repair so long as
there is agricultural use of said property. Said fencing shall be
installed prior to the issuance of the first building permit. The
developer shall pay for and obtain any necessary permits from the
County of Ventura prior to initiation of any work. Copies of such
permits shall be provided to the Community Development Director prior
to the commencement of work.
Ordinance No. 346
Page 28
7. City Agreements.
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 seg. 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 5463 and
RPD 2003 -04 and contingent on City Engineer and Community
Development Director acceptance of a Performance Bond in a form
and amount satisfactory to them to 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.
Ordinance No. 346
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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 necessary at its
sole discretion to conduct proceedings and related services for
possible formation of a District. City further agrees that, to the extent
permitted by the Act as determined by bond counsel, Developer may
be reimbursed for costs advanced by Developer for formation and
related proceedings.
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.
City agrees that upon receipt of Developer's written request to acquire
a housing unit to meet its obligation under subsection 6.9 of this
Agreement, the City Manager, or his /her authorized representative,
shall respond within thirty (30) calendar days accepting or rejecting the
housing unit. Failure to respond within the specified time shall be
deemed as rejection of said unit.
Ordinance No. 346
Page 30
City further agrees Developer may construct rather than purchase the
housing units required by subsection 6.9 of the Agreement so long as
Developer meets all requirements of this Agreement and the proposed
project. The property on which the units are proposed to be
constructed must be consistent with the City's General Plan, Zoning
Codes, and the Moorpark Municipal Code.
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.
7.9. City agrees that any payments by Developer to meet its obligations per
section 6.23 of this Agreement also satisfies subsection 3.1.1 -3 of the
Mitigation Monitoring Program adopted for the Project and the City
further agrees to use said payment for open space preservation
purposes within the City, City's Area of Interest or property contiguous
thereto.
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 CKy 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
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; (e)
Ordinance No. 346
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damage to work in progress by reason of fire, flood, earthquake or other
casualty; (f) 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; (g)
delay caused by a restriction imposed or mandated by a governmental entity
other than City; or (h) 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.
11.1. 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
(c) materially breaches any of the provisions of the Agreement.
11.2. Default by City. City shall be deemed in breach of this Agreement if it
materially 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
Ordinance No. 346
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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, including, in the case of a
failure to pay a fee required hereunder, to compel such payment. In
addition, if the breach is of subsections 6.9, 6.10, 6.12, 6.13, 6.14,
6.16, 6.17, and 6.18 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.
Ordinance No. 346
Page 33
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.
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 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,
Ordinance No. 346
Page 34
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 required by subsection 6.9,
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.
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
Ordinance No. 346
Page 35
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. Severabilitv. 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.
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 Project Approvals or the
Subsequent Approvals, the provision of this Agreement shall prevail. Should any
provision of the Implementation Plan be found to be in conflict with any provision
of this Agreement, the provisions of the Implementation Plan shall prevail.
Ordinance No. 346
Page 36
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 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, the Developer and City of Moorpark have executed
this Development Agreement on the date first above written.
OWNER /DEVELOPER
Toll Land XX Limited Partnership
CITY OF MOORPARK
Patrick Hunter
Mayor
ALL SIGNATURES MUST BE NOTARIZED
Ordinance No. 346
Page 37
EXHIBIT A
LEGAL DESCRIPTION
Tentative Tract 5463
Being a portion of Lot 9, of the Vallette Tract, in the city of Moorpark, County of Ventura,
State of California, as shown on the map filed in Book 3, Page 41 of Miscellaneous
Records (Maps) in the office of the County Recorder of the County of Ventura, State of
California, and a portion of Lot 1, Tract 4928 -3, in the city of Moorpark, County of
Ventura, State of California, as shown on the map filed in Book 151, Pages 7 thru 31,
inclusive, of Miscellaneous Records (Maps) in the office of the County Recorder of the
County of Ventura, State of California.
Ordinance No. 346
Page 38
EXHIBIT "B"
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Toll Land XX Limited Partnership
Toll Brothers Inc.
Attn: Mark E. Forter, Regional Counsel
725 Town & Country Road, Suite 500
Orange, California 92868
Ordinance No. 346
Page 39
STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
I, Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, do
hereby certify under penalty of perjury that the foregoing Ordinance No. 346 was
adopted by the City Council of the City of Moorpark at a regular meeting held on the 6th
day of December, 2006, and that the same was adopted by the following vote:
AYES: Councilmembers Harper, Mikos, Millhouse, Parvin, and Mayor
Hunter
NOES: None
ABSENT: None
ABSTAIN: None
WITNESS my hand and the official seal of said City this 15th day of December, 2006.
„D S.
Deborah S. Traffenstedt, CWClerk
(seal)