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HomeMy WebLinkAboutORD 257 1999 0616ORDINANCE NO. 257 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND PACIFIC COMMUNITIES WHEREAS, at a duly noticed public hearing on December 2 and 16 1998, and March 3 and June 2, 1999, the City Council considered the application filed by Pacific Communities for the following projects on land located on the south side of Los Angeles Avenue, opposite Shasta and Goldman Avenues, (Assessor Parcel Nos. 506 -0 -03 -135, 145, 155, 165 and 185): General Plan Amendment No. 96 -1 - for a change in the Land Use Designation of the Land Use Element of the General Plan from High (H) Density Residential, 7 DU /Acre maximum and Very High (VH), 15DU /Acre Maximum, to High Density Residential (H). Zone Change No. 96 -2 - for a change in the zoning designation on the property from Residential Planned Development (RPD) 13u and 5.3u to RPD 7.Ou. Vesting Tentative Tract Map No. 5053 - for a subdivision of an existing 35.23 gross acres into 247 residential lots. Residential Planned Development Permit No. 96 -1 - for approval of a Residential Planned Development Permit consisting of 247 residential dwelling units. WHEREAS, at a duly noticed hearing on December 16, 1998, March 3 and June 2, 1999, the City Council considered Development Agreement No. 98 -2. The Development Agreement provides a provision for the Developer to provide affordable housing units. The Development Agreement also specifies the Affordable Housing provisions and other Developer Agreement items such as financial contributions to the City; and WHEREAS, The City Council on June 2, 1999, determined that the proposed Development Agreement relates to and would provide for financing and construction of various improvements and facilities relating to the project area, provides for on -site affordable housing units, the potential environmental impacts relating to this project have already been addressed by the Mitigated Negative Declaration, Initial Study and Mitigation Monitoring Program prepared for General Plan Amendment 96 -1, Zone Change 96 -2, Vesting Tentative Tract Map 5053 and Residential Planned Development Permit No. 96 -1. Ordinance No. 257 Page 2 NOW, THEREFORE THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. Findings: (1) Government Code Section 65864 of the State Planning and Zoning Law provides that cities may enter into development agreements with persons having equitable interest in real property for development of that property. (2) The owner of the property covered by General Plan Amendment No. 96 -1, Zone Change No. 96 -2, Vesting Tentative Tract Map No. 5053, and Residential Planned Development Permit No. 96 -1 have applied to the City of Moorpark to seek a Development Agreement between the City and said owner pursuant to Chapter 15.40 of the Moorpark Municipal Code. (3) The Planning Commission of the City of Moorpark at a duly noticed public hearing on November 16, 1998 reviewed the Development Agreement at the request of the City Council, and has made recommendations in Resolution PC -98 -361 to the City Council pertaining to the approval of the Development Agreement. (4) The City Council has received Planning Commission Resolution PC -98 -361 and has considered the Planning Commission evaluation and recommendations for approval of the Development Agreement between the City and Pacific Communities. (5) A duly noticed public hearing was conducted by the City Council on December 2 and 16, 1998 to consider the Development Agreements and to accept public testimony related thereto. (6) 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. (7) The Development Agreement is consistent with the General Plan. (8) The Development Agreement addresses the period of development, public facilities and infrastructure development and financing for these improvements and sets forth reasonable mitigation fees to defer the cost of development to minimize impacts to the City. Ordinance No. 257 Page 3 (9) The City Council has determined that the proposed Development Agreement relates to and would provide for financing and construction of various improvements and facilities relating to the project area and affordable housing to families, the potential environmental impacts relating to this project have been addressed by the Mitigated Negative Declaration, Initial Study and Mitigation Monitoring Program prepared for General Plan Amendment No. 96 -1, Zone Change No. 96 -2, Vesting Tentative Tract Map 5053, and Residential Planned Development Permit No. 96 -1. SECTION 2. Adoption (1) The City Council of the City of Moorpark hereby approves the Development Agreement attached hereto as Attachment "A" and incorporated by reference, between the City of Moorpark and Pacific Communities. (2) The Mayor and City Manager are authorized to execute and sign the final Development Agreement and any covenants necessary to effect the agreement. (3) Upon execution, the Development Agreement shall be recorded within the Office of the County Recorder, County of Ventura, as a covenant running with all the lands comprising General Plan Amendment 96 -1, Zone Change No. 96 -2, Vesting Tentative Tract Map No. 5053 and Residential Planned Development Permit No. 96 -1. (4) The Agreement shall become operative and run for the term specified within the agreement. 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. Ordinance No. 257 Page 4 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 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 Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this 16th day of June, 1999. ATTEST: Deborah S. Traffenste t, City Clerk Attachment A: Development Agreement between the City and Pacific Communities Ordinance No. 257 Page 5 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 MP GROUP, LLC RELATING TO CORTE BELLO THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 Ordinance No. 257 Page 6 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and MP GROUP, LLC, a California Limited Liability Company (referred to hereinafter as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreement's 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 sue. 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 the City in order to establish certainty in the development process. 1.2. [INTENTIONALLY LEFT BLANK] 1.3. Developer is owner in fee simple of certain real property in the City of Moorpark, consisting of approximately thirty -five (35) acres located at 850 Los Angeles Avenue, just west of Liberty Bell Road, as more specifically described by the legal description set forth in Exhibit A, which exhibit is attached hereto and incorporated herein by this reference (the "Property "). 1.4. City has approved, or is in the process of approving, General Plan Amendment No. 96 -1 ( "GP "), Zone Change No. 96 -2 ( "ZC"), Vesting Tentative Tract Map No. 5053 ( "VTTM "), and Residential Planned Development Permit No. 96 -1 ( "RPD"). Implementation of these land use entitlements is subject to a mitigation monitoring program that was approved by City on June 2, 1999(the "Mitigation Monitoring Program "). (The GP, ZC, VTTM, RPD and Mitigation Monitoring Program are collectively referred to as the "Project Approvals ".) The Project Approvals authorize a residential development commonly known as "Corte Bello ", consisting of 247 detached single family dwelling units on the Property (the "Project"). 1.5. [INTENTIONALLY LEFT BLANK] Ordinance No. 257 Page 7 1.6. 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. 1.7. 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. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and exactions 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. 1.8. 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 General Plan Amendment No. 96 -1. 1.9. On November 9, 1998, and November 23, 1998, 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. 1.10 On March 3, 1999 the City Council considered the Project and referred it to the Planning Commission for further review. The Planning Commission reviewed the Project on May 24, 1999 and forwarded its recommendations to the City Council. 1.11 On March 17, 1999 the Moorpark City Council agreed to consider a General Plan Amendment for certain real property consisting of approximately five (5) acres located west of Liberty Bell Road (Liberty Bell Road Property) and as more specifically described by the legal description set forth in Exhibit B, which exhibit is attached hereto and incorporated herein by this reference. In the event the Moorpark City Council approves a General Plan Amendment for Developer or CLP Investment, LLC, a California Limited Liability Company (CLP) but not for anyone else for the Liberty Bell Road Property for a residential land use designation of either Medium or High with accompanying Residential Planned Development zoning, Residential Planned Development Permit and Tract Map, the affordable housing obligation shall be fifteen percent (15 %) of the approved dwelling units to be sold to Ordinance No. 257 Page 8 persons /families at the moderate income level. The size of the dwelling units for the referenced dwelling units shall be no less than seventy five percent (75 %) of the average size of the other dwelling units approved by the City for the Liberty Bell Road Property. The sale of the referenced dwelling units shall be subject to the applicable provisions of the Affordable Housing Implementation and Resale Restriction Plan referenced in Section 6.10 of this Agreement relative to resale and other provisions as determined by City at its sole discretion so that City may require a portion of the difference between the then market sales price and the actual sale amount be paid to the City at the time the original purchaser sells the dwelling unit. 1.12 On December 2, 1998 , the City Council of City ( "City Council ") commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing approved the Agreement by Ordinance No. 257 ( "the Enabling Ordinance "). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may be referred to hereinafter as "the site" or "the Project area ". 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 area 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 in which the Developer has a legal interest is, and 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 the 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 effective date of the sale or transfer, provided that the Developer (i) was Ordinance No. 257 Page 9 not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivers 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. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. permitted uses those that are this Agreement. The permitted and of the Property shall allowed by the Project conditionally be limited to Approvals and 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 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 purposes that are forth in the Project dedications of land for public applicable to the Property are set Approvals and this Agreement. 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Ca1.3d 465 (1984), the California Supreme Court held that the failure of the parties Ordinance No. 257 Page 10 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 section, 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. In particular, but without limiting any of the foregoing, no numerical restriction shall be placed on the number of dwellings units that can be built each year within the Project Area. However, nothing in this section shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals and this Agreement. 5.2. Amendment of Project the Project Approva= the City Council referendum process, Property, unless the the amendment. Approvals. No amendment of any of Ls, whether adopted or approved by or through the initiative or shall apply to any portion of the Developer has agreed in writing to 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps other than Vesting Tentative Tract Map NO. 5053(e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals "; individually "a Subsequent Approval ") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Ordinance No. 257 Page 11 The term of any Subsequent Approval, except a tentative map, 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 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, the 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. 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 conditional 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 square footage or 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. 257 Page 12 (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 or commercial rents; or (f) modifies the land use from what is permitted by the General Plan Land Use Element at the date the Enabling Ordinance is adopted 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. Modification Of Approvals. Throughout the term of this Agreement, the Developer shall have the right, at its election and without risk to any right that is vested in it pursuant to this section, to apply to City for minor modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such minor 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. 5.5. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from the Developer if all infrastructure required by Project Approvals 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. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.6. 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, Ordinance No. 257 Page 13 including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. The Developer shall comply with (i) this Agreement, (ii) the Project Approvals, and (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant. 6.2. [INTENTIONALLY LEFT BLANK] 6.3. [INTENTIONALLY LEFT BLANK] 6.4. The fee in lieu of park land dedication pursuant to the City's Subdivision Ordinance requirements (adopted by Ordinance No. 6) shall be paid prior to the recordation of each phase of the final tract map. The fee shall be calculated pursuant to the City's Subdivision Ordinance requirements but shall be no less than twenty five hundred dollars ($2,500.00) for each residential lot for all lots including those designated for Affordable Housing Units. 6.5. As a condition of the issuance of a building permit for each dwelling unit 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 two thousand five hundred dollars ($2,500.00). The fee shall be adjusted annually (commencing one (1) year after the first residential building permit is issued within the Project) 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 Development Agreement is approved by the City Council (e.g., if approval occurs in June, then the month of February is used to calculate the increase). 6.6. As a condition of the issuance of a building permit for each residential unit, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by the City in its sole and unfettered Ordinance No. 257 Page 14 discretion. On the effective date of this Agreement, the amount of the Citywide Traffic Fee shall be $3,000 per dwelling unit. Commencing January 1, 2000, and annually thereafter, 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 "). 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 subsequent annual indexing which results in an increase. Any Citywide Traffic Fee still due at the time the City, Caltrans, private developer with City's approval, or any other public or private entity awards a contract to construct an underground rail crossing west of Gabbert Road, shall be paid at the then applicable rate, within ninety (90) days of said contract award. 6.7. On the operative date of this Agreement Developer shall pay all outstanding City processing and environmental processing costs related to the project and preparation of this Agreement. 6.8. Developer hereby waives any right it may have under California Government Code Section 65915 et. Seq., or any successor thereto, or any 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 for this project. 6.9. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway landscaping, street lighting, 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 obligate the property owners association to provide for maintenance of parkway landscaping and street lighting 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. 6.10. Developer shall provide eleven (11)three (3) bedroom units at approximately 1,027 square feet and eleven (11) four (4) bedroom units at approximately 1,131 square feet to be sold to buyers who meet the criteria Ordinance No. 257 Page 15 for low income (800 of median income). The initial sales price, buyer eligibility, resale restrictions, respective role of City and Developer, and any other item determined necessary by the City shall be set forth in the Affordable Housing Implementation and Resale Restriction Plan, which shall be approved by the City Council in its sole and unfettered discretion prior to recordation of the first final Tract Map for this project. In addition, in lieu of constructing the fifteen (15) Very Low Income Affordable Housing Units, Developer shall pay a fee of Sixty Thousand Dollars ($60,000) each, or a total of Nine Hundred Thousand Dollars ($900,000) to the City (In -Lieu Fee) which shall be used by the City at its sole discretion for the purpose of providing housing affordable to very - low, low, or moderate income households. A pro -rata portion of the In -Lieu Fee in the amount of Three Thousand Six Hundred Forty Three Dollars and Seventy Three cents ($3,643.77) shall be paid prior to issuance of the building permit for each dwelling unit in the Project. 6.11. 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. 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. Developer further agrees to not protest these fees as may be authorized by Section 66000, et. Seq. of the California Government Code or any other applicable state or federal law. 6.12 Within thirty (30) days of the Effective Date of this Agreement, Developer shall deposit One Hundred Thousand Dollars ($100,000.00) (Deposit) with the City for the purpose of managing and coordinating (Project Management) the widening of Los Angeles Avenue (SR 118) to three (3) travel lanes in each direction between Moorpark Avenue and Spring Road (Widening Project) . City shall at its sole and unfettered discretion retain one or more private consultants to provide Project Management. Project Management shall include but not be limited to coordination with City, Caltrans, and other public agencies and private utilities, preparation of Caltrans Project Study Report (PSR) and Project Report (PR), preparation of conceptual design alternatives and acquisition of any necessary rights- Ordinance No. 257 Page 16 of -way, except that it shall not include preparation of final design plans and specifications and construction administration and inspection. Any portion of the Deposit remaining after completion of Project Management shall be returned without interest to Developer within ninety (90) days after completion of said Project Management. 7. City Agreements. 7.1. City shall process in an expedited manner to the extent possible all plan checking, excavation, grading, building, encroachment and street improvement permits, certificates of occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the grading, excavation, construction, development, improvement, use and occupancy of the Project. 7.2. City agrees that units reserved for and sold to low income buyers shall not be subject to air quality (Traffic System Management) fees. 7.3 City agrees to condition Vesting Tentative Tract Map No. 5053 to expire ten (10) years after its approval or conditional approval, or upon expiration or earlier termination of this Agreement, whichever occurs first. 7.4. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the conditions of the approved tentative map and contingent on City Engineer and Director of Community Development 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. 7.5. City shall allow construction of one or more model homes prior to City Council approval of a final subdivision map for the VTTM. 7.6. City shall allow recordation of final maps for the VTTM in phases. 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 Ordinance No. 257 Page 17 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 the 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 the Developer hereunder or render this Agreement invalid or void. 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) 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 (b) 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 Ordinance No. 257 Page 18 (c) fails to make any payments required under this Agreement; or (d) materially breaches any of the other provisions of the Agreement and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 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 and the same is not cured within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personally delivered or on the third day following the day after 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. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. Ordinance No. 257 Page 19 The remedies for breach of the Agreement by the Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding any other language of this Agreement, if the breach is of Subsection 6.9 or 6.10 of this Agreement, City shall have the right to withhold the issuance of building permits from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against the Developer if it violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to the 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. 13. Estoppel Certificate. At any time and from time to time, any Developer may deliver written notice to City and City may deliver written notice to the Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and Ordinance No. 257 Page 20 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 f iled 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 Ordinance No. 59 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 Developer. 16. Indemnification. The 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, the 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 the Project Approvals, or any Subsequent Approvals. 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. Ordinance No. 257 Page 21 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. 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 "C" 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 contains 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. Ordinance No. 257 Page 22 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 the other Party 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 Ordinance No. 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developers. City and each 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. 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 Ordinance No. 257 Page 23 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. Attorneys' fees under this section shall include attorneys` fees on any appeal and any post - judgment proceedings to enforce the judgment. This provision is separate and several and shall survive the merger of this Agreement into any judgment on this Agreement. 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, MP Group, LLC and City of Moorpark have executed this Development Agreement on CITY OF MOORPARK By: Patrick Hunter Mayor ATTEST Deborah S. Traffenstedt City Clerk MP GROUP, LLC By: Nelson Chung President Ordinance No. 257 Page 24 EXHIBIT A LEGAL DESCRIPTION AssessorDs Parcel Nos. 506 - 030 -135, -145, -155, -165, and -180. Ordinance No. 257 Page 25 EXHIBIT B LEGAL DESCRIPTION THAT PORTION OF LOT K, TRACT L, RANCHO SIMI, IN THE COUNTY OF VENTURA, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 5, PAGE 5 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, DESCRIBED AS FOLLOWS: BEGINNING AT A POINT IN THE CENTERLINE OF LOS ANGELES AVENUE, 60 FEET WIDE, AT THE NORTHEASTERLY CORNER OF SAID LOT K: THENCE, 1ST SOUTH 00 002105" WEST 1018.38 FEET; AT 30 FEET A 4X4 POST WITH BOLT AND WASHER IN THE CENTER; AT 1018.38 FEET A 1 -INCH PIPE MARKED WITH METAL TAG STAMPED L.S. 1842 SET ON THE SOUTHEASTERLY CORNER OF SAID LOT K; THENCE, 2ND NORTH 65 054132" WEST 16.43 FEET ALONG THE SOUTHERLY LINE OF SAID LOT K TO THE TRUE POINT OF BEGINNING; THENCE, 3RD NORTH 65 054132" WEST 438.04 FEET ALONG THE SOUTHERLY LINE OF SAID LOT K TO A 1 -INCH PIPE MARKED WITH A METAL TAG STAMPED L.S. 1842; THENCE, 4TH NORTH 00 002'05" EAST 442.21 FEET; THENCE, 5TH NORTH 89 057110" WEST 384.62 FEET TO AN INTERSECTION OF THE WESTERLY LINE OF DEED RECORDED MAY 4, 1993, AS DOCUMENTED NO. 93- 079362 OF OFFICIAL RECORDS; THENCE, 6TH SOUTH 02 000'49" EAST 14.54 FEET; THENCE, 7TH SOUTH 89 046109" EAST 7.03 FEET; THENCE, 8TH SOUTH 04 028127" EAST 99.64 FEET; THENCE, 9TH SOUTH 02 000105" WEST 506.85 FEET TO THE TRUE POINT OF BEGINNING. EXCEPT THE EASTERLY 15 FEET, AS DESCRIBED IN THE DEED TO CALIFORNIA RANCH COMPANY, RECORDED IN BOOK 155, PAGE 31 OF DEEDS. ALSO EXCEPT THAT CERTAIN LAND CONVEYED TO THE CITY OF MOORPARK, FOR PUBLIC ROAD PURPOSES BY DEED RECORDED MAY 4, 1993, AS DOCUMENT NO. 93- 079362 OF OFFICIAL RECORDS. Ordinance No. 257 Page 26 EXHIBIT C To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: MP Group LLC c/o Pacific Communities Builder, Inc. 1000 Dove Street, Suite 100 Newport Beach, CA 92660 Attn. Nelson Chung Ordinance No. 257 Page 27 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) CITY OF MOORPARK ) ss. I, Deborah S. Traffenstedt, Moorpark, California, do hereby ce that the foregoing Ordinance No. Council of the City of Moorpark at 16th day of June, 1999, and that following vote: City Clerk of the City of rtify under penalty of perjury 257 was adopted by the City a regular meeting held on the the same was adopted by the AYES: Councilmembers Evans, Harper, Rodgers, Wozniak, and Mayor Hunter NOES: None ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 1St day of December, 1999. Deborah S. Traffenste t, City Clerk (seal)