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HomeMy WebLinkAboutORD 285 2002 0918ORDINANCE NO. 285 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND VINTAGE CREST SENIOR APARTMENTS, L.P., A CALIFORNIA LIMITED PARTNERSHIP (USA PROPERTIES FUND, INC.) WHEREAS, the Planning Commission of the City of Moorpark on June 24, 2002, did adopt Resolution Nos. PC 2002 -426 recommending to the City Council approval of General Plan Amendment No. 2002 -01, Zone Change 2002 -01, Residential Planned Development 2002 -02 and adoption of the project Mitigated Negative Declaration; and WHEREAS, at a duly noticed public hearing on July 10, 2002, the City Council considered the application filed by USA Properties Fund Inc. for the following project (APN'S 506 -0- 050 -185 and a portion of 506 -0- 050 -475): GPA 2002 -01, Zone Change 2002 -01, and RPD 2002 -02 for 190 affordable senior apartments located at Park Lane and Park Crest Lane, including a change in the zoning and land use from commercial to residential with a density of 20 units per acre; and WHEREAS, the City Council on July 10, 2002, adopted the Mitigated Negative Declaration for the project as having been completed in accordance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City's CEQA procedures; and WHEREAS, the Planning Commission of the City of Moorpark on August 26, 2002, did adopt Resolution No. PC 2001 -428 recommending to the City Council approval of Development Agreement No. 2002 -01 submitted by Vintage Crest Senior Apartments, L.P., a California Limited Partnership; and WHEREAS, at a duly noticed hearing on September 4, 2002, the City Council considered Development Agreement No. 2002 -01; and WHEREAS, the City Council, after review and consideration of the information contained in the City Council staff reports and testimony, has made a decision on this matter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: Ordnance No. 285 Page 2 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. 2002 -01. b. The Development Agreement and 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 insure the public health, safety and welfare SECTION 2. The City Council hereby adopts Development Agreement No. 2002 -01 (attached hereto as Exhibit A) between the City of Moorpark, a municipal corporation and Vintage Crest Senior Apartments, L.P., a California Limited Partnership, and the City Clerk is hereby directed to cause one copy of the signed adopted agreement to be recorded with the records of the County of Ventura within ten (10) days of adoption of said 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 ;urisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute order of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. Ordinance No. 285 Page 3 PASSED AND ADOPTED this 18` AmTEST: Deborah S. Traffenste , City C: EXHIBIT A: Development Agreement No. 2001 -01 Ordinance No. 285 Page 4 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 VINTAGE CREST SENIOR APARTMENTS, L.P. THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 Ordinance No. 285 Page 5 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 VINTAGE CREST SENIOR APARTMENTS, L.P., a California limited partnership (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: _. 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 the City in order to establish certainty in the development process. 1.2. Developer is owner in fee simple of certain real property in the City of Moorpark, consisting of approximately nine and forty -eight hundredths (9.48) acres generally located north of the Arroyo Simi and south of Park Lane and 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 "). 1.3. City has approved, or is in the process of approving, General Plan Amendment No. 2002 -01 ( "GP "), Zone Change No. 2002 -01 ( "ZC "), and Residential Planned Development Permit No. 2002 -02 ( "RPD "). Implementation of these land use entitlements is subject to a mitigation measures monitoring and reporting program that was approved by City on July 17, 2002 (the "Mitigation Monitoring Program "). (The GP, ZC, RPD and Mitigation: Monitoring Program are collectively referred to as the "Project Approvals ".) The Project Approvals authorize a residential development consisting of 190 apartments on the Property (the "Project "). 1.4. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property �n accordance with the Project Approvals and this ordinance No. 285 Page 6 Agreement. limit the governmental specified in In consideration future exercise and proprietary this Agreement. thereof, City agrees to of certain of its powers to the extent 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. 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. 1.6. 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 General Plan Amendment No. 2002 -01. 1.7. On August 26, 2002, 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 September 4, 2002, 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. 285 ( "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. 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 Ordnance No. 285 Page 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 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 development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state Ordinance No. 285 Page 8 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 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 provided the Property is developed in accordance with the Project Approvals and this Agreement. 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 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, subdivision Ordinance No. 285 Page 9 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 a final subdivision map or building permits. 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 �he 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; Ordinance No. 285 Page 10 (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 oe 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; or (f) modify 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 Ordinance No. 285 Page 11 to completion of construction and all of relevant provisions of the Project Subsequent Approvals and this Agreement satisfied. In no event shall building allocated on any annual numerical basis arbitrary allocation basis. the other Approvals, have been permits be or on any 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, 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. 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 issuance of a building permit for each residential dwelling unit, Developer shall pay City a community services fee as described here--'n (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 Seven Hundred Dollars ($2,700.00) per residential unit. The Community Services Fee shall be adjusted annually commencing on January 1, 2005, and each January 1 thereafter 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 Ordinance No. 285 Page 12 consumers within the Los Angeles /Riverside /Orange Co. metropolitan area during the prior year. The first such calculation shall be made using the month of October 2004 over the month of October 2003 and so forth each January 1 until all Community Services Fees are paid. In the event there is a decrease in the referenced CPI for any annual adjustment, the Community Services Fee shall remain at its then current amount until such time as the next subsequent annual adjustment results in an increase. 6.4. The fee in lieu of park land dedication (Park Fee) pursuant to the requirements of City Ordinance No. 52 shall be paid prior to the issuance of the building permit for each residential unit. The Park Fee may be expended by the City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Park Fee shall be Two Thousand Dollars ($2,000.00) per residential unit. Commencing January 1, 2005, and annually thereafter, the Park 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 Park Fee shall remain at its then current amount until such time as the next. subsequent annual indexing results in an increase. 6.5. As a condition of the issuance of a building permit for each residential unit, 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 seven hundred fifty dollars ($2,750.00) for each residential unit. The fee shale be adjusted annually on January 1, 2005, and each January 1 thereafter 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 Co. metropolitan area during the prior year. The first such calculation shall be made using the month of October 2004 over the month of October 2003 and so forth each January 1 until all Development Fees are Ordinance No. 285 Page 13 paid. In the event there is a decrease in the referenced CPI for any annual adjustment, the Development Fee shall remain at its then current amount until such time as the next subsequent annual adjustment results in an 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 discretion. On the operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Eight Hundred Dollars ($800.00) per residential unit for all Citywide Traffic Fees paid on or before December 31, 2004. Developer agrees that the Citywide Traffic Fee for all residential units with a building permit issued after December 31, 2004, shall be Four Thousand Two Hundred Forty Dollars ($4,240.00) per unit plus the annual indexing as hereinafter specified. Commencing January 1, 2006, 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 results in an increase. 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 residential units approved for this proect to exceed a total of One Hundred Ninety (190) dwelling units. 6.9. Developer agrees for the life of the Project to cast affirmative ballots for the increase of any assessments for existing assessment districts for the maintenance Ordinance No. 285 Page 14 of parkway and median landscaping, street lighting, and parks conferring special benefits, and for the formation of any new assessment district for the purposes listed above in order to supplement then existing assessments upon properties within the Project. Developer also agrees to add this language to any Regulatory Agreement as part of the sale of any revenue bonds issued by the City for this Project. 6.10 Developer, in consideration for a density bonus obtained through the Project Approvals that is greater than would otherwise be available, agrees to guarantee the affordability of one hundred percent (1000 of all residential units for the life of the Project as follows: 48 units at very low income (50o of median income) and 142 units at low income (600 of median. income). A minimum of twelve (12) two- bedroom units shall be occupied by qualified very low income tenants at all times for the life of the Project. The method of selecting eligible tenants, tenant eligibility requirements, the respective roles of the City and the Developer and any other items determined necessary by the City shall be set forth in an Affordable Housing Implementation and Rental Restriction Plan (the "Plan "). The Plan, shall restrict the rents of all one hundred ninety (190) units as referenced above and shall be consistent with this Agreement and approved by the City Council in its sole and unfettered discretion prior to the final inspection and occupancy approval for the first residential unit in the Project. 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 agrees to the extent permitted by applicable state and federal law to grant priority to eligible Moorpark residents for the life of the Project. Developer shall pay the City's direct costs for preparation and review of the Plan and the Affordable Housing Agreement, up to a maximum of Five Thousand Dollars ($5,000). By mutual agreement of Developer and City in lieu of the aforementioned Affordable Housing Agreement, these provisions may be incorporated into the Regulatory Agreement if revenue bonds are issued by the City for this Project. In addition, the Developer agrees not to convert the Project to for -sale condominiums, community apartments, Ordinance No. 285 Page 15 planned development, stock cooperative, or other common interest development, or as congregate care or assisted living facility for the life of 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 and statutes amendatory or supplementary thereto or any other applicable state or federal law. 6.12 Developer shall construct Park Lane per modified Ventura County Standard Plate B -3 -C, 68 feet right -of- way; containing 52 feet of roadway (curb face to curb face) , 8 feet wide parkways containing 5 feet wide sidewalks located 6 inches from the right -of -way. This will include all portions of existing Park Lane that do not conform to this section. Developer shall demonstrate conformance to ADA access requirements at all locations including driveway locations. Prior to approval of the Park Lane improvement plans, an ADA plan shall be reviewed, approved by the City Engineer and held on file to show conformance to those requirements. Improvement plans will detail all locations where utilities or other improvements conflict with normal walk locations and that the plans conform to the City's requirements. Developer shall reconstruct any broken sidewalk, curb and gutter, and street pavement from the Project to Los Angeles Avenue and repave any portions of Park Lane to the sat - sfaction of the City Engineer. Street sections shall be designed for a 50 -year life. 6.13 Developer agrees that in the event the cable television services or their equivalent are provided to zhe Project under collective arrangement or any collective means other than by a City Cable Franchisee (including, but not limited to, programming provided over a wireless or satellite system contained within the Project), the apartment management entity shall pay Ordinance No. 285 Page 16 monthly to City an access fee of five percent (50) of gross revenue generated by the provision of those services, or the highest franchise fee required from any City Cable Franchisee, whichever is greater. "Gross revenue" is as defined in Chaoter 5.06 of the Moorpark Municipal Code and any successor amendment or supplementary provision thereto. Developer further agrees that in the event cable television services or their equivalent are provided to the Project by any means other than by a City Cable Franchisee, that the City's government channel shall be available to all units as part of any such service on the same basis as if the Project was served by a City Cable Franchisee. Developer also agrees to add this language to any Regulatory Agreement as part of the sale of any revenue bonds issued by the City for this Project. 6.14 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 pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto, or any other applicable state or federal law. 6.15 Developer agrees that as a condition of issuance of a building permit for each residential unit on or after January 1, 2005, it shall pay the then applicable Los Angeles Avenue Area of Contribution (AOC) Fee less One Thousand Fifty -two Dollars ($1,052.00) for each residential unit so long as the payment of Two Hundred Thousand Dollars ($200,000.00), as specified in Subsection 7.2 of this Agreement, has been paid on or before December 31, 2004. Developer agrees this is in addition to the AOC amount specified in Subsection 7.2 of this Agreement. If the AOC payment specified in Subsection 7.2 of this Agreement has not been paid on or before December 31, 2004, Developer agrees tc pay the then applicable AOC fee for all residentiai units prior to issuance of building permits. 6.16 Developer agrees prior to issuance of any grading or building permit for the Project, to enter into an agreement with City to pay City each year Project is otherwise exempt from the payment of any portion or all of the real secured and unsecured property taxes on the Property the amount the City would have received if the Project was not exempt from said payment of property Ordinance No. 285 Page 17 taxes. The agreement shall include but not be limited to: A. If Project is sold or transferred to another entity, the fee amount shall increase based on the new value of the property as if it was reassessed consistent with applicable laws. B. The first year amount shall be Twenty Thousand Dollars ($20, 000. 00) . In the event payment of the first year amount occurs after December 31, 2004, the first year amount shall increase by one percent (lo) for each six -month period or any portion thereof until paid. C. The payment amount shall increase two percent (20) each year above the prior year amount except as noted in A., above. In no event shall there be a decrease in the amount paid in any year compared to the prior year. D. Payments shall be made twice each year on dates as mutually agreed upon with provisions for penalties and interest in the event of late or non - payment. 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 Mitigation Monitoring Program. 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 the Developer's payment of the Los Angeles Avenue Area of Contribution (AOC) Fee for the project shall be in the amount of Two Hundred Thousand Dollars ($200,000.00) payable prior to issuance of the first building permit for the project so long as the building permits for all residential units in the Ordinance No. 285 Page 18 Project are issued on or before December 31, 2004. Developer shall pay the AOC Fee for each residential unit as specified in Subsection 6.15 of this Agreement for building permits issued after January 1, 2005. 7.3 City agrees that the Developer's payment of the Traffic Systems Management (TSM) Fee shall be in the amount of Two Hundred Dollars ($200.00) for each residential dwelling unit payable prior to the issuance of the building permit for each unit. 7.4 City agrees to allow certain modifications to the City Zoning Code and development standards as follows: A. Allow the project to be built with a 1:1 parking ratio with a total of 190 parking spaces required on site. B. Allow the project to be built at a density of twenty (20) units per acre. C. Allow reduction in Park Fees and Citywide Traffic Fees and payment of the Los Angeles Avenue Area of Contribution Fees at the commercial fee rate so long as the Project has all building permits issued for residential units issued prior to December 31, 2004. 7.5 City agrees that the Citywide Traffic Fee shall be in the amount of Eight Hundred Dollars ($800.00) for each residential unit payable prior to the issuance of the building permit for each residential unit for any building permit issued on or before December 31, 2004. The Citywide Traffic Fee for all units with a building permit issued after December 31, 2004, shall be Four Thousand Two Hundred Forty Dollars ($4,240.00) plus the annual indexing as specified in Subsection 6.6 of this Agreement. 7.6 City agrees that in lieu of preparing a traffic study for the Project and submitting same for review by the City Engineer, the Developer shall pay Four Thousand Dollars ($4,000.00) for impacted intersections. 7.7 Notwithstanding anything in this Agreement to the contrary, in the event Developer repairs or rebuilds the Project consistent with the Project Approvals as a result of fire, earthquake, or other casualty, the following fees would not need to be paid: Community Ordinance No. 285 Page 19 Services Fee, Park Fee, Development Fee, Citywide Traffic Fee, and Los Angeles Avenue Area of Contribution Fee. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by 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: Ordinance No. 285 Page 20 (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, rulina 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 (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 _o 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 -�ime 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 Sates mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money Ordinance No. 285 Page 21 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. 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 Subsections 6.3, 6.4, 6.5, 6.6, 6.9, 6.10, 6.11, or 6.15, 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 Ordinance No. 285 Page 22 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 if it takes title to the Property, 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 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 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. i5. Amendment or Termination by Mutual Consent. In accordance with the provisions of Chapter 15.40 of the Moorpark Municipal Code 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. Ordinance No. 285 Page 23 16. Indemnification. The Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its cfficers, 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 any 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. 19. Term. This Agreement shall remain in full force and effect for a term of five (5) years commencing on its operative date or until one (1) year after occupancy of the One Hundred Ninetieth (190tr) apartment unit, whichever occurs later, 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. Ordinance No. 285 Page 24 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. 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 ana their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 25. Recordation of Agreement and Amendments. This Agreement ana 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 or any successor thereof then in effect. 27. Cooperation Between City and Developers. 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. Ordinance No. 285 Page 25 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 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. Ordinance No. 285 Page 26 IN WITNESS WHEREOF, Vintage Crest Senior Apartments, L.P., and City of Moorpark have executed this Development Agreement on 2002. CITY OF MOORPARK By: Patrick Hunter Mayor ATTEST Deborah S. Traffenstedt City Clerk VINTAGE CREST SENIOR APARTMENTS, L.P., a California limited partnership By: USA Properties Fund, Inc., a California corporation Its: Administrative General Partner By: Geoffrey C. Brown, President By: Riverside Charitable Corporation a California non- profit corporation Its: Managing General Partner By: Kenneth S. Robertson, Chairman of the Board Ordinance No. 285 Page 2^ EXHIBIT A LEGAL DESCRIPTION Parcel l: A portion of Lot "L" of Tract "L" of the Rancho Simi, 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 West line of the land conveyed to W.O. Redden and wife, recorded July 3, 1952, in Book 1075, Page 191 of Official Records, distant thereon South 0° 03' East, 615.24 feet from the center line of Los Angeles Avenue 60.00 feet wide; thence, continuing along said West line iSt : South 00 03' East, 810.02 feet to the Southwest corner of said land of Redden in the Southerly line of the land conveyed to John. A. King and wife, by deed recorded in Book 754, Page 451 of Official Records; thence, along the Southwest line of said land of King 2"d: North 66° 00' 25" West, 273.75 feet to the Southwest corner thereof; thence, along the West line of said land of King 3rd: North 0° 03' West, 698.71 feet to a line bearing West from zhe point of beginning; thence 4th: East, 250.00 feet to the point of beginning. Parcel 2: Parcel B of Parcel Map No. 5316, in the City of Moorpark, County of Ventura, State of California as shown on that Parcel Map recorded in Book 60 Page 87 of Parcel Maps, in the office of the County Recorder of said County. Ordinance No. 285 Page 28 EXHIBIT B To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn. City Manager To Developer: Steven T. Gall, Executive Vice President USA Properties Fund 2440 Professional Drive, Suite 100 Roseville, CA 95661 -7773 Ordinance No. 285 Page 29 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) CITY OF MOORPARK ) ss. I, Deborah S. Traffenstedt, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Ordinance No. 285 was adopted by the City Council of the City of Moorpark a- a regular meeting held on the 18`h day of September, 2002, and that the same was adopted by the foi lowincr vote: AYES: Councilmembers Harper, Mikos, and Wozniak NOES: None ABSENT: Councilmember Millhouse and Mayor Hunter ABSTAIN: None WITNESS my hand and the official seal of said City this 22nd day of October, 2002. Deborah S. Traffenstedt, City Clerk (seal)