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HomeMy WebLinkAboutORD 299 2004 0121ORDINANCE NO. 299 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND MOORPARK 150, LLC, A LIMITED LIABILITY CORPORATION (GENERALLY KNOWN AS SUNCAL) WHEREAS, the Planning Commission of the City of Moorpark on December 2, 2003, did adopt Resolution No. PC 2003 -452 recommending to the City Council approval of Development Agreement No. 1998 -03, submitted by Moorpark 150, LLC, a Limited Liability Corporation (generally known as SunCal); and WHEREAS, at a duly noticed hearing on December 17, 2003, the City Council considered Development Agreement No. 1998 -03; and WHEREAS, the City Council on December 17, 2003, adopted the Mitigated Negative Declaration for the SunCal project consisting of General Plan Amendment No. 98 -01, Zone Change 98 -01, Vesting Tentative Tract Map 5130, Residential Planned Development No. 98- 02, and Development Agreement No. 1998 -03, as having been completed in accordance with the California Environmental Quality Act (CEQA), the CEQA Guidelines, and the City's CEQA procedures; and WHEREAS, the City Council, after review and consideration of the information contained in the City Council staff reports and public testimony, has made a decision on this matter. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES HEREBY ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Moorpark does hereby find as follows: a. The Development Agreement is consistent with the General Plan as amended by General Plan Amendment No. 98 -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. 1998 -03 (attached hereto) between the City of Moorpark, a municipal corporation, and Moorpark 150 a Limited Liability Corporation; and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City Ordinance No. 299 Page 2 enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 3. That if any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 4. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 5. The City Clerk shall certify to the passage and adoption of this Ordinance; shall enter the same in the book of original ordinances of said city; shall make a minute order of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star, a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City o Meg park, and which is hereby designated for that purpose. /17 ATTACHMENT: Development Agreement No. 1998 -03 Ordinance No. 299 Page 3 ATTACHMENT Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND MOORPARK 150, LLC Ordinance No. 299 Page 4 THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 DEVELOPMENT AGREEMENT This Development Agreement ( "the Agreement ") is made and entered into on , 2004, by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ") and MOORPARK 150, LLC, a Limited Liability Corporation, the owner of real property within the City of Moorpark generally referred to as Vesting Tentative Tract Map 5130 (referred to hereinafter individually as "Developer "). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal Code chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. 1.2. Prior to approval of this Agreement, but after the approval of the Mitigated Negative Declaration (MND), Mitigation Measures, and Mitigation Monitoring and Reporting Program ( "the MMRP ") for the Project Approvals as defined in subsection 1.3 of this Agreement, the City Council of City ( "the City Council ") approved General Plan Amendment No. 98 -01 ( "GPA 98 -1 "), for approximately 77 acres of land within the City ( "the Property "), as more specifically described in Exhibit "A" attached hereto and incorporated herein, and changed the zoning of the Property pursuant to Zone Change No. 98 -01 ( "ZC 98 -1 "). 1.3. GPA 98 -1, ZC 98 -1, Vesting Tentative Tract Map 5130 (Tract 5130) and Residential Planned Development Permit No. 98 -2 (RPD 98 -2) [collectively "the Project Ordinance No. 299 Page 5 Approvals "; individually "a for the development of construction of certain connection therewith ( "the Project Approval "] provide the Property and the off -site improvements in Project "). 1.4. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, City agrees to limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1.5. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. Developer anticipates developing the Property over a minimum of three (3) years. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and conditions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.6. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City, as amended by GPA 98 -1. 1.7. On December 2, 2003, 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 December 17, 2003, the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing on December 17, 2003, approved the Agreement by Ordinance No. 299 ( "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 ". Ordinance No. 299 Page 6 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property in which a 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 any of Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the operative date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivered to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. Ordinance No. 299 Page 7 4.1. Permitted Uses. permitted uses those that are this Agreement. The permitted and conditionally of the Property shall be limited to allowed by the Project 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 "). Reservations and Dedications. All reservations and of land for public purposes that are the Property are set forth in the Project d this Agreement. dedications applicable to Approvals an 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. Ordinance No. 299 Page 8 In furtherance of the Parties intent, as set forth in this subsection, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property provided the Property is developed in accordance with the Project Approvals and this Agreement. Nothing in this subsection shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.3. Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals "; individually "a Subsequent Approval ") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently Ordinance No. 299 Page 9 adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: (a) change any permitted or conditionally permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improvements from what is allowed by the Project Approvals. (c) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (d) are not uniformly applied on a City -wide basis to all substantially similar types of development projects or to all properties with similar land use designations; (e) control residential rents; (f) prohibit or regulate development on slopes with grades greater than 20 percent, including without limitation Moorpark Municipal Code Chapter 17.38 or any successor thereto, within the Property; or (g) modify the land use from what is permitted by the City's General Plan Land Use Element at the operative date of this Agreement or that prohibits or restricts the establishment or expansion of urban services including but not limited to community sewer systems to the Project. Ordinance No. 299 Page 10 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire ten (10) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the provisions of Government Code Section 66452.6(a) or the fact that the final map may be filed in phases. Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code Section 66410 et seq., or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map or subdivision improvement or other agreements relating to the Project, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Department of Community Development prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, any Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification Of Approvals. Throughout the term of this Agreement, Developer shall have the right, at its election and without risk to or waiver of any right that is vested in it pursuant to this section, to apply to City for modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such modification shall not require an Ordinance No. 299 Page 11 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. 5.6. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from Developer if all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. Consistent with subsection 5.1 of this Agreement, in no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City -wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. Developer shall comply with (i) this Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant and (iv) the MMRP of the MND and any subsequent or supplemental environmental actions. Ordinance No. 299 Page 12 6.2. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a development fee as described herein (the "Development Fee "). The Development Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Development Fee shall be Eight Thousand Six Hundred Thirty -Five Dollars ($8,635.00) per residential unit and Thirty - Eight Thousand, Eight Hundred Fifty -Eight Dollars ($38,858.00) per gross acre of institutional land on which the use is located. The fee shall be adjusted annually commencing one (1) year after the first residential building permit is issued within Tract 5130 by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the first residential building permit is issued within Tract 5130 (e.g., if the permit issuance occurs in October, then the month of June is used to calculate the increase). In the event there is a decrease in the referenced Index for any annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "). The Citywide Traffic Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Four Thousand, Six Ordinance No. 299 Page 13 Hundred Sixty -Four Dollars ($4,664.00) per residential unit, and Twenty Thousand, Nine Hundred Ninety -Eight Dollars ($20,998.00) per acre of institutional land on which the institutional use is located. Commencing on January 1, 2005, and annually thereafter, both categories of the Citywide Traffic Fee shall be increased to reflect the change in the State Highway Bid Price Index for the twelve (12) month period that is reported in the latest issue of the Engineering News Record that is available on December 31 of the preceding year ( "annual indexing "). 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. 6.5. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a community services fee as described herein (Community Services Fee). The Community Services Fee may be expended by City in its sole and unfettered discretion. The amount of the Community Services Fee shall be Two Thousand, Two Hundred Thirty -Three Dollars ($2,233.00) per residential unit, and Seven Thousand Seventy Dollars ($7,070.00) per gross acre of institutional land on which the institutional use is located. Commencing on January 1, 2007, and annually thereafter, the Community Services Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all Community Services Fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month of August over the prior month of August. In the event there is a decrease in the CPI for any annual indexing, the Community Services Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Ordinance No. 299 Page 14 6.6. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, and MND. 6.7. Prior to the issuance of the building permit for each residential dwelling unit within the Property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). On the operative date of this Agreement, the amount of the Park Fee shall be Ten Thousand, Eight Hundred Dollars ($10,800.00) for each residential dwelling unit and Fifty Cents ($.50) per square foot of each building used for institutional purposes within the Property. The fee shall be adjusted annually commencing one (1) year after the first residential building permit is issued within Tract 5130 by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month which is four (4) months prior to the month in which the first residential building permit is issued within Tract 5130 (e.g., if the permit issuance occurs in October, then the month of June is used to calculate the increase). In the event there is a decrease in the referenced Index for any annual indexing, the Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. Developer agrees that the above - described payments shall be deemed to satisfy the parkland dedication requirement set forth at California Government Code Section 66477 et seq. for the Property. 6.8. Provided that prior to recordation of the first final map for Tract 5130 or March 31, 2005, whichever is later, Ventura County Waterworks District No. 1 or any successor entity confirms that it has sufficient recycled water to serve the public and community owned landscaped areas within Tract 5130, then Developer Ordinance No. 299 Page 15 shall construct appropriately sized water lines, pumping facilities, and storage facilities for recycled water consistent with the requirements of the City, Waterworks District No. 1 and Calleguas Water District. Said lines shall be installed prior to the final cap being placed on all streets. Developer shall provide service including payment of any connection and meter charges and shall use recycled water for medians and parkways for all public streets, and any other public and commonly owned landscaping and recreation areas. The amount of recycled water needed and areas to be irrigated by recycled water shall be determined by City at its sole discretion. The recycled water line(s) shall be installed for each City approved phase of development and the recycled water shall be in use prior to the first occupancy approval for each City approved phase of development if such recycled water is available within one -half mile of the Property. Developer shall install dual water meters and services for all locations determined necessary by City at its sole discretion to insure that both potable and recycled water are available where restroom and drinking fountains are planned. 6.9. Developer shall grant a conservation easement to the City in a form acceptable to the City consistent with Civil Code Section 815 et seq. for lots A, B, C, 0 and P. The limitations and exclusions described in this subsection 6.9 shall be included in the conservation easements. No extraction of subsurface mineral resources, grading, excavation, drilling, pumping, mining, or similar activity shall be allowed in any portion of Lots A, B, C, 0 and P, except grading for the purpose of establishing and maintaining landscaping as part of a fuel modification zone as determined by the Director of Community Development and Ventura County Fire Protection District. Lots A, B, and P may include wetlands, storm water detention and debris basins and related service roads, landscaping and decorative planting areas, sidewalks and trails that do not interfere with the open space uses as determined by the City Council at its sole and unfettered discretion. 6.10 Prior to recordation of the first final map for the Property, the Developer shall pay to City One Hundred Ordinance No. 299 Page 16 Forty Thousand Dollars ($140,000.00) to satisfy its obligation to upgrade the intersections of Moorpark Avenue (SR 23) at Charles Street and at High Street (special conditions of approval 22 and 23 of Tract 5130). Effective January 1, 2005, the $140,000.00 payment referenced above shall increase by one -half of one percent (.50) each month until paid. This payment may be expended by City in its sole discretion. 6.11. Developer shall provide five (5) four (4) bedroom and two bath and two (2) three (3) bedroom and two bath single family detached units with a minimum of 1,200 square feet to be sold to buyers who meet the criteria for low income (80 percent or less of median income); and four ( 4 ) four ( 4 ) bedroom and two ( 2 ) bath, and one (1) three (3) bedroom and two (2) bath single family detached units with a minimum of 1,200 square feet to be sold to buyers who meet the criteria for very low income (50 percent or less of median income). All single family detached units shall include a standard size two -car garage with roll -up garage door and a minimum driveway length of eighteen (18) feet measured from the back of sidewalk, meet minimum setback requirements of the City RPD zone, include concrete roof tiles, and other amenities typically found in moderate priced housing in the City (e.g., air conditioning /central heating, washer /dryer hookups, garbage disposal, built -in dishwasher, concrete driveway, automatic garage door opener). The duplex type units in Tracts 3841, 3070 -2, 3070 -3, 3070 -4, 4170, and 5133 are considered to be single family detached units for the purposes of this subsection 6.11. Subject to City's sole discretion, this obligation, in whole or part, may be met by providing attached for sale units in lieu of single family detached units at the ratio of one and one -half (1;,�) attached for sale unit for each single family detached unit. In the event such substitution results in any fraction of a unit, then the requirement shall be rounded up to the next higher whole number (e.g. the requirement of 3 single family detached units are met by 41,� attached for sale units, then 5 attached for sale units are required). Each of the substituted units shall be at Ordinance No. 299 Page 17 the income level of the units for which they are being substituted. The attached for sale units shall provide the same number of bedrooms and bathrooms and contain all of the same amenities for a single family detached unit as described above, except the minimum driveway length. Prior to acquiring any housing unit to meet the obligations of this subsection 6.11, Developer must first receive the written approval of City Manager or his /her authorized representative that the unit meets the requirements of this Development Agreement and any applicable Affordable Housing Agreement for Tract 5130. Developer agrees that lack of a written response from City as specified in subsection 7.7 of this Agreement is deemed a rejection of the Developer's request. Developer may construct rather than purchase the housing units required of it pursuant to this subsection 6.11 so long as Developer meets all requirements of this Agreement and the proposed project and property on which the units are proposed to be constructed conform to the City's General Plan, Zoning Codes, and the Moorpark Municipal Code. Nothing in this Agreement requires City to consider a General Plan Land Use Amendment, Zone Change, or any other land use entitlement to allow or permit said proposed construction. Developer further agrees that it has the obligation to provide the required number of housing units as specified above regardless of the cost to acquire or construct said housing units. Developer further agrees that City has no obligation to use eminent domain proceedings to acquire any of the required housing units and that this subsection 6.11 is specifically exempt from the requirements of subsection 7.2 of this Agreement. Prior to recordation of the first final Tract Map for this Project, the City Council in its sole and unfettered discretion shall approve an Affordable Ordinance No. 299 Page 18 Housing Implementation and Resale Restriction Plan (Plan) that provides policies and guidelines to ensure that all of the required affordable housing units are provided consistent with this Agreement and applicable State laws and remains affordable for the longest feasible time. The Plan shall include but not be limited to the following items: Initial Purchase Price, market value, buyer eligibility, affordability and resale covenants and restrictions, equity share and second trust deed provisions, respective role of City and Developer, the responsibility of providing the affordable units by each developer in the event of successors and /or assigns to this Agreement, the final number of single family detached and single family attached units that shall be provided to meet Developer's affordable housing obligation, quality of and responsibility for selection of amenities and applicability of home warranties in the event Developer constructs housing units or purchases newly constructed units from other developers /builders to meet all or a portion of its obligation and any other items determined necessary by the City. The Developer and City shall, prior to the occupancy of the first residential unit for the Project, execute an Affordable Housing Agreement that incorporates the Plan in total and is consistent with this Agreement. Developer shall pay the City's direct costs for preparation and review of the Affordable Housing Implementation and Resale Restriction Plan and the Affordable Housing Agreement up to a maximum of Nine Thousand Dollars ($9,000.00). Three (3) of the low income units and three (3) of the very low income units shall be provided by Developer and occupied by qualified buyers (or at City's sole discretion sold to City) prior to occupancy of the 50th residential unit in Tract 5130, and the remaining four (4) low income units and two (2) very low income units shall be provided by Developer and occupied by qualified buyers (or at City's sole discretion sold to City) prior to occupancy of the 90th residential unit in Tract 5130. No less than six (6) or the equivalent number of substituted attached for sale units of the required twelve (12) units shall be located within the Ordinance No. 299 Page 19 boundaries of the Moorpark Redevelopment Agency project area. All units shall meet the criteria of all applicable State laws to qualify as newly affordable to low income and very low income persons (in the quantity as specified in this Agreement) to satisfy a portion of the City's RHNA obligation and if within the Moorpark Redevelopment Agency project area to satisfy a portion of the Agency's affordable housing goals. None of the affordable units required by this Agreement shall duplicate or substitute for the affordable housing requirement of any other developer or development project. All subsequent approvals required of City under this subsection 6.11 shall be made at City's sole discretion. If any conflict exists between this Agreement and any Affordable Housing Agreement required by this Agreement or the conditions of approval for Tract Map No. 5130 and /or RPD No. 98 -2, then the Affordable Housing Agreement shall prevail. All affordable housing units provided under this subsection 6.11 that received a final inspection prior to January 1, 2004, must conform to the Uniform Building Code in effect as of July 1, 1983. Developer shall pay at its sole cost and expense for a city selected contractor to perform a home inspection and /or occupancy inspection by the City Building Official, and Developer at its sole cost and expense shall make any needed corrections to conform to inspection reports and current building codes. At Developer's sole cost and expense, the roof shall be inspected by a city selected contractor and if necessary as determined by City at its sole discretion repaired or replaced by a city selected licensed roofing contractor and certified to have no less than a 20 -year life. Developer at its sole cost and expense shall purchase a standard home warranty policy for a three -year period commencing on the date the unit is first sold to a qualified low or very low income household and shall include but not be limited to coverage of heating and air conditioning systems, automatic garage door opener, and all built -in appliances and include a deductible /service call amount of no more than One Hundred Dollars ($100.00) Ordinance No. 299 Page 20 per service request. For these units, City may approve a composition shingle roof in lieu of a concrete tile roof if all other provisions of this subsection 6.11 are met. In no event shall a wood shake or shingle roof be approved. For housing units constructed by Developer to meet its obligation under this subsection 6.11 or acquired by Developer that were not previously occupied (i.e. built after the Operative Date of this Agreement and either not previously occupied or occupied by a bona fide buyer for less than twelve months) , Developer agrees to provide the same home warranties associated with other units in the same project as the constructed or purchased unit, or the maximum time required by State law, whichever is longer, but in no event less than ten (10) years. Developer agrees that all such warranties shall inure to the benefit of and be enforceable by the ultimate occupants of the low income and very low income units, and that all warranties by subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The qualified buyer (or City in lieu of a qualified buyer at its sole discretion) shall have the same choices of finish options as purchasers of other units in the project and final walk - through approval of condition of unit before close of sale. Any options provided to buyers of units shall be provided to buyer(s) of the required units including but not limited to color and style choices for carpeting and other floor coverings. Flooring selections shall be made within 10 days of Developer's request for selection. In the event the monthly HOA fees exceed $100.00, Developer shall deposit $120.00 for each dollar or portion thereof of the monthly HOA fees that are in excess of $100.00 into a City administered trust to assist with future HOA fees for each affected unit. The Initial Purchase Price for the low - income buyers shall not exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of California Health and Safety Code. For a household of 4, the current monthly "affordable housing cost" would be 30% times 70% of Ordinance No. 299 Page 21 $74,700, the current median income for a household of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety Code.) The Initial Purchase Price for a low income household of 4 or fewer would be $158,000 under current market conditions, based upon the following assumptions: Low Income Buyer Household of Four Item Detail Amount Initial Purchase Price $158,000 Down Payment 50 of estimated market value $14,000 Loan Amount Initial Purchase Price less down payment $144,000 Interest Rate 6.0o Property Tax 1.250 of Initial Purchase Price $172 /mo. HOA $50 /mo. Fire Insurance $30 /mo. Maintenance $30 /mo. Utilities $186 /mo. The Initial Purchase Price for a low - income household of five or more would be based on the affordable housing cost for the actual household size. Under current market conditions, that price would be $170,000 for a household of five, $185,000 for a household of six, and $200,000 for a household of seven. The assumptions associated with the above purchase price figures for low income households include a 50 down payment, based on estimated market value of $280,000.00, mortgage interest rate of 60, no mortgage insurance, property tax rate of 1.250, based on Initial Purchase Price, homeowners' association dues of $50 per month, fire insurance of $30 per month, Ordinance No. 299 Page 22 maintenance costs of $30 per month, and utilities of $186 per month for a household of 4, assuming a 3 bedroom unit, and utilities of $213 per month for households of 5, 6 and 7 persons, assuming a 4 bedroom unit. The Initial Purchase Price for the very low - income buyers shall not exceed affordable housing cost, as defined in Section 50052.5(b)(2) of California Health and Safety Code. For a household of 4, the current monthly "affordable housing cost" would be 30% times 500 of $74,700, the current median income for a household of 4 in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5(c) of the Health and Safety Code.) The Initial Purchase Price for a very low income household of 4 or fewer would be $98,000 under current market conditions, based upon the following assumptions: Very Low Income Buyer Household of Four Item Detail Amount Initial Purchase Price $98,000 Down Payment 30 of estimated market value $8,400 Loan Amount Initial Purchase Price less down payment $89,600 Interest Rate 6.0% Property Tax 1.25% of Initial Purchase Price $102 /mo. HOA $50 /mo. Fire Insurance $30 /mo. Maintenance $30 /mo. Utilities $186 /mo. That Initial Purchase Price for a very low- income household of five or more would be based on the affordable housing cost for the actual household size. Under current market conditions, the Initial Purchase Price would be $105,000 for a household of five, Ordinance No. 299 Page 23 $117,000 for a household of six, and $128,000 for a household of seven. The assumptions associated with the above purchase price figures for very low income households include a 3% down payment, based on estimated market value of $280,000.00, mortgage interest rate of 60, no mortgage insurance, property tax rate of 1.250, based on Initial Purchase Price, homeowners' association dues of $50 per month, fire insurance of $30 per month, maintenance costs of $30 per month, and utilities of $186 per month for a household of 4, assuming a 3 bedroom unit, and utilities of $213 per month for households of 5, 6 and 7 persons, assuming a 4 bedroom unit. Developer acknowledges that changes in market conditions may result in changes to the Initial Purchase Price, down payment amounts, mortgage interest rates, and other factors for both low income and very low income buyers. Furthermore, if "affordable housing cost ", as defined in Section 50052.5 of California Health and Safety Code, should change in the future, the above guidelines will be modified. The Affordable Housing Implementation and Resale Restriction Plan shall address this potential change. In the event the City, at its sole discretion purchases one or more of the units from Developer in lieu of a qualified buyer, the Initial Purchase Price shall be based on a household size of 4 persons and consistent with all requirements of this subsection 6.11. Developer agrees that prior to and upon the sale of a required unit to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City may at its sole discretion take any actions and impose any conditions on said sale or subsequent sale of the unit to ensure ongoing affordability to low and very low income households and related matters. After the sale of a housing unit by Developer to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City, not Developer, shall have sole Ordinance No. 299 Page 24 responsibility for approving any subsequent sale of that housing unit. Developer shall pay closing costs for each unit, not to exceed $6,000. Beginning March 1, 2006, and on March lst for each of fifteen subsequent years, the maximum $6,000 to be paid for closing costs shall be increased annually by any percentage increase in the Consumer Price Index (CPI) for All Urban Consumers for Los Angeles /Orange /Riverside metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the amount due shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. The referenced Developer funded closing costs shall be for the benefit of qualified buyers (or City in lieu of qualified buyers as determined by City at its sole discretion for one or more of the required units) in their acquisition of a unit from Developer not Developer's acquisition of a unit from one or more third parties. The Developer's escrow cost shall not exceed the then applicable maximum amount per unit regardless of the number of escrows that may be opened on a specific unit. 6.12. Developer agrees that the Mitigation Measures included in the City Council approved MND and MMRP, or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. Developer agrees to pay to City an air quality mitigation fee, as described herein (Air Quality Fee), in satisfaction of the Transportation Demand Management Fund mitigation requirement for the Project. The Air Quality Fee may be expended by City in its sole discretion for reduction of regional air pollution emissions and to mitigate residual Project air quality impacts. At the time the Fee is due, City may at its sole discretion require Developer to purchase equipment, vehicles, or other items, contract and pay for services, or make improvements for which Developer Ordinance No. 299 Page 25 shall receive equivalent credit against Air Quality Fee payments or refund of previous payments. The Air Quality Fee shall be One Thousand, Five Hundred Eighty -Eight Dollars ($1,588.00) per residential unit to be paid prior to the issuance of each building permit for the first residential unit in Tract 5130. Commencing on March 1, 2007, and annually thereafter the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles /Anaheim /Riverside metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. For institutional uses, the Air Quality Fee shall be calculated by the Director of Community Development consistent with the then applicable Ventura County Air Quality Management District URBEMIS Model prior to the first occupancy approval for each institutional use. 6.13. Developer hereby waives any right that it may have under California Government Code Section 65915 et. seq., or any successor thereto, or any other provision of Federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of dwelling units approved to be constructed on the Property. 6.14. Developer agrees to cast affirmative ballots for the formation of one or more assessment districts and levying of assessments, for the maintenance of parkway and median landscaping, street lighting, including but not limited to all water and electricity costs, and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate Ordinance No. 299 Page 26 said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. Prior to recordation of the first final map for the Property, if required by City at its sole discretion, Developer shall also form one or more property owner associations to assume ownership and maintenance of open space land, trails, storm water detention and /or debris basins and related drainage facilities, landscaping, and other amenities, and to comply with the National Pollutant Discharge Elimination System (NPDES) requirements of the Project. The obligation of said property owner associations shall be more specifically defined in the conditions of approval of Tract 5130 and RPD 98 -2. 6.15. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, drainage, entitlement processing fees, and plan check and permit fees for buildings and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. 6.16. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee for each residential lot and institutional use prior to the issuance of a building permit for each lot or use. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit for each residential lot and institutional use. Ordinance No. 299 Page 27 6.17. Prior to approval of the first final map for the Property, the Developer shall pay to the City Seventy Thousand Dollars ($70,000.00) to satisfy the MND and MMRP Mitigation Measures 2., 5., and 11. as contained in Initial Study Exhibit 1. This payment may be expended by City in its sole discretion for open space acquisition and maintenance and habitat restoration and preservation. 6.18. The street improvements for North Hills Parkway shall be designed and constructed by Developer to provide for a 50 -year life as determined by the City Engineer. 6.19. Prior to occupancy of the first residential unit in Tract 5130 and RPD 98 -2, Developer shall acquire at its sole cost and expense the property needed to improve and make improvements to the Walnut Canyon Road and be consistent with the conditions of approval for Tract 5130. 6.20. 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. Developer further agrees that the fees it has agreed to pay pursuant to subsections 6.3, 6.5, 6.10 and 6.17 of this Agreement are not public improvement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto and that for purposes of Government Code Section 65865(e) and statutes amendatory or supplementary thereto, that this Agreement is entered into as of December 17, 2003, notwithstanding the fact that this Agreement may not become operative until after January 1, 2004. 6.21. Developer agrees to comply with Section 15.40.150 of the Moorpark Municipal Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall include evaluation of its compliance with the approved MND and MMRP. Ordinance No. 299 Page 28 6.22 Developer shall install a six foot (61) to eight foot (81) high decorative masonry wall and landscaping adjacent to said wall at or within ten (10) feet directly north of the north right of way of the proposed North Hills Parkway (i.e. at or within 10 feet north of the south property line of County of Ventura Waterworks District No. 1 parcel APN 500-027 - 013). The location, design, and installation of the decorative masonry wall, landscaping, and related irrigation system shall be to the satisfaction of the Director of Community Development and City Engineer and installed prior to the first residential occupancy of Tract 5130 and RPD 98 -2, so long as the County of Ventura Waterworks District No. 1 grants the necessary easements as determined by the Director of Community Development in his /her sole discretion for installation of the above described wall, landscaping and irrigation system. 6.23 Developer agrees to provide City with cash deposits as City may require at its sole discretion to pay all City and related costs for the proceedings and related services for possible formation of a District as referenced in subsection 7.6 of this Agreement, which may be required to be paid prior to formation of a District, or in the event a District is not formed, after the commencement of proceedings related thereto. Said costs may include but are not limited to attorney fees, engineering fees, City staff costs, and City overhead expenses of fifteen percent (150) on all out of pocket and professional service costs. Developer further agrees that City may at its sole discretion select the bond counsel, underwriter, financial advisor and any other professional service provider City deems necessary to process the possible formation of a District. 6.24 Developer agrees that any election to acquire property by eminent domain shall be at City's sole discretion, and only after compliance with all legally required procedures including but not limited to a hearing on a proposed resolution of necessity. Ordinance No. 299 Page 29 7. City Agreements. 7.1. City shall commit reasonable time and resources of City staff to work with Developer on the expedited and parallel processing of applications for Subsequent Approvals for the Project area and shall use overtime and independent contractors whenever possible. Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, the expedited and parallel processing. 7.2. If requested in writing by Developer and limited to City's legal authority, City at its sole discretion shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside City's legal boundaries. The process shall generally follow Government Code Section 66462.5 et seq. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, City staff costs, and City overhead expenses of fifteen percent (150) on all out -of- pocket costs. 7.3. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the conditions of approval for Tract 5130 and RPD 98 -1 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 and construction of on -site and off -site improvements. In the case of failure to comply with the terms and conditions of the early grading agreement, the City Council may by resolution declare the surety forfeited. Ordinance No. 299 Page 30 7.4. City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements for the same property so long as said entitlements are deemed complete. 7.5. City agrees that the Park Fee required under subsection 6.7. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes. 7.6. City agrees that upon receipt of a landowners' petition by Developer and Developer's payment of a fee, as prescribed in California Government Code Section 53318, as well as payment for costs described in subsection 6.23 of this Agreement, City shall commence proceedings to form a Mello -Roos Community Facilities District ( "District ") and to incur bonded indebtedness to finance all or portions of the public facilities, infrastructure and services that are required by the Project and that may be provided pursuant to the Mello - Roos Community Facilities Act of 1982 (the "Act "); provided, however, the City Council, in its sole and unfettered discretion, may abandon establishment of the District upon the conclusion of the public hearing required by California Government Code Section 53321 and /or deem it unnecessary to incur bonded indebtedness at the conclusion of the hearing required by California Government Code Section 53345. The purpose of any such District may also include fees for funding public facilities, infrastructure and services that are required by the Project to the extent permitted by the Act as determined by bond counsel for the District's bond indebtedness financing. City may select and retain bond counsel, engineers, underwriters, financial advisors and any other professional service providers it deems necessary at its sole discretion to conduct proceedings and related services for possible formation of a District. City further agrees that, to the extent permitted by the Act as determined by bond counsel, Developer may be reimbursed for costs advanced by Developer for formation and related proceedings. Ordinance No. 299 Page 31 In the event that a District is formed, the special tax levied against any residential lot or residence thereon shall afford the buyer the option to prepay the special tax in full prior to the close of escrow on the initial sale of the developed lot by the builder of the residence. 7.7. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Property required herein for the duration such units are required to be maintained as affordable consistent with the provisions of subsection 6.11 of this Agreement. City agrees that upon receipt of Developer's written request to acquire a housing unit to meet its obligation under subsection 6.11 of this Agreement, the City Manager, or his /her authorized representative, shall respond within thirty (30) calendar days accepting or rejecting the housing unit. Failure to respond within the specified time shall be deemed as rejection of said unit. City further agrees Developer may construct rather than purchase the housing units required by subsection 6.11 of the Agreement so long as Developer meets all requirements of this Agreement and the proposed project and property on which the units are proposed to be constructed are consistent with the City's General Plan, Zoning Codes, and the Moorpark Municipal Code. 7.8. City agrees to allow for a variation of five feet (5') maximum in the grades as shown on the Grading Plan exhibit of Tract 5130 subject to approval of the Director of Community Development upon a determination by the Director in his /her sole discretion subject to review by the City Council that the overall design and visual quality of the Property would not be significantly affected. 7.9. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map development Ordinance No. 299 Page 32 permit or development agreement with one or more other developers. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, City shall also review Developer's compliance with the MMRP. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay ", as hereinafter defined, provided that the Party claiming the delay gives notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) 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. Ordinance No. 299 Page 33 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (b) fails to make any payments required under this Agreement; or (c) materially breaches any of the provisions of the Agreement. 11.2. Default by City. City shall be deemed in breach of this Agreement if it materially breaches any of the provisions of the Agreement. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money Ordinance No. 299 Page 34 damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided pursuant to subsection 11.3 herein. The remedies for breach of the Agreement by City shall be injunctive relief and /or specific performance. The remedies for breach of the Agreement by Developer shall be injunctive relief and /or specific performance. In addition, if the breach is of subsections 6. 10, 6.11, 6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20, 6.21, or subsection 6.23 of this Agreement, City shall have the right to withhold the issuance of building permits to Developer throughout the Project from the date that the notice of violation was given pursuant to subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against any Developer who violates any City ordinance or state statute. 12. Mortgage Protection. At the same time that City gives notice to Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar Ordinance No. 299 Page 35 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, Developer may deliver written notice to City and City may deliver written notice to Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. Ordinance No. 299 Page 36 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 affected Developer. 15.1 Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement. 16. Indemnification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any provision thereof, or any Project Approval or Subsequent Approval or modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until the close of escrow on the initial sale of the last Affordable Housing Unit, whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Ordinance No. 299 Page 37 Expiration of the term or earlier termination of this Agreement shall not automatically affect any Project Approval or Subsequent Approval that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "B" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or 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 Ordinance No. 299 Page 38 rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Ordinance 59 of City or any successor thereof then in effect. 27. Cooperation Between City and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. Should any provision of the Implementation Plan be found to be in conflict with any provision of this Agreement, the provisions of the Implementation Plan shall prevail. 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. Ordinance No. 299 Page 39 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, Moorpark 150, LLC, and City of Moorpark have executed this Development Agreement on the date first above written. CITY OF MOORPARK Patrick Hunter Mayor OWNER /DEVELOPER Moorpark 150, L.L.C., a Delaware limited liability company By: Moorpark Equity Partners, Ltd., a California limited partnership Its Managing Member By: KRE, L.L.C., a Delaware limited liability company Its General Partner By. Bruce Elieff Its Managing Member Ordinance No. 299 Page 40 By: Todd Kurtin Its Managing Member By: LSOF Moorpark Land, L.P. a Texas limited partnership Its Managing Member By: LSOF GenPar III, Inc., a Texas corporation Its General Partner Name: Title. Ordinance No. 299 Page 41 EXHIBIT "A" (LEGAL DESCRIPTION OF TRACT NO. 5130 BOUNDARY) That portion of Tract 1 and Tract 2 of M.L. WICKS SUBDIVISION, in the county of Ventura, State of California, as per the map recorded in Book 5, at Page 37 of Miscellaneous Records (Maps), in the office of the County Recorder of said county, AND that portion of Lots "U" and "V" of Tract "L" of RANCHO SIMI, in the county of Ventura, State of California as per the map recorded in Book 5, at Page 5 of Miscellaneous Records (Maps), in the office of the County Recorder of said county, described as follows: Beginning at the intersection of the northerly boundary line of said M. L. WICKS SUBDIVISION and the easterly line of Walnut Canyon Road, 50 feet wide, as described in deed recorded in Book 104, at Page 18 of Deeds of said county; thence along said northerly line, to and along the north line of said Lots "U" and "V ", 1st North 89 °57'13" East, a distance of 1499.39 feet to the northeasterly comer of the land described in the deed recorded in Book 136 at Page 38 of Deeds of said county; thence along the boundary of said land, 2nd South 00 °05'32" East, a distance of 733.24 feet to the southeasterly corner of said land; thence along the southerly line of said land, to and along the southerly boundaryof the land described in Book 136 at Page 330 of Deeds of said county, 3rd South 89 °57'13" West, a distance of 424.20 feet to a point on the easterly line of said M.W. WICKS SUBDIVISION; thence along said easterly line the following six courses, 4th South 00 °05'32" East, a distance of 3.02 feet; thence, 5th South 00 °02'53" East, a distance of 599.66 feet; thence, 6th South 89 °46'50" West, a distance of 65.01 feet; thence, 7th South 00 °05'18" East, a distance of 599.74 feet; thence, 8th South 89 °5442" West, a distance of 35.72 feet; thence, 9th South 00 °05'18" East, a distance of 400.00 feet to the southeasterly corner of Lot 10 of said Tract 1; thence along the southerly line of said Lot 10, to and along the southerly line of Lot 17 of said Tract 2, Ordinance No. 299 Page 42 10`h South 89 °57'17" West, a distance of 792.58 feet to the southeasterly comer of the land described in deed recorded in Book 1804, at Page 174 of Official Records of said county; thence along the easterly line of said land and the northwesterly prolongation thereof, the following four courses, 11" North 00 000'28" East, a distance of 177.79 feet; thence, 12`h North 73 010'28" East, a distance of 192.15 feet; thence, 13`h North 45 05843" East, a distance of 46.46 feet; thence, 14`h North 09 057'32 West, a distance of 161.38 feet to a point on the northerly line of Wicks Road, 60 feet wide, as granted to the County of Ventura in the deed recorded in Book 894, at Page 399 of Official Records, of said county, said point being on a curve concave northwesterly having a radius of 170.00 feet, a radial line to the center of said curve bears North 10 °13'57" West; thence along said curve and said northerly line the following three courses, 15`h Westerly an arc distance of 30.33 feet through a central angle of 10 °1325 "; thence .tangent to said curve, 46`h South 89 °59'28" West, a distance of 250.81 feet to the beginning -of a tangent curve to the left having a radius of 830.00 feet; thence along said curve, 17`h Westerly an arc distance of 165.78 feet through a central angle of 11'26'39" to the southeasterly comer of land described in the deed recorded as Instrument Number 93- 093575 of Official Records of said county; thence along the boundary of said land the following two courses, 18th North 58 029'46" East, a distance of 89.92 feet; thence, 19`h North 11028'09'' West, a distance of 151.26 feet to the northeasterly corner of said land; thence along the northerly line of said land to and along the northerly boundary of the land described in the deed recorded as Instrument Number 92- 214837 of Official Records of said county, 201h South 78 °49'18" West, a distance of 253.55 feet to the northwesterly corner of last said land; thence along the westerly line of last said land the following two courses, 21S` South 14 °21'22" East, a distance of 86.53 feet; thence, Ordinance No. 299 Page 43 22nd South 02 °21'22" East, a distance of 118.93 feet to a point on the northerly line of said Wicks Road, being a point on a curve concave southeasterly having a radius of 830.00 feet, a radial line to the center of said curve bears South 24013'42" East; thence along said curve and along said northerly line the following two courses, 23`d Southwesterly an are distance of 15.41 feet through a central angle of 1'03'50"; thence tangent to said curve, 24" South 64 °42'28" West, a distance of 49.62 feet to the easterly line of the land described in deed recorded in Book 1224, at Page 557 of Official Records of said county; thence along the boundary of said land the following five courses, 25`" North 02 021'22" West, a distance of 137.86 feet; thence, 26" North 14 02122" West, a distance of 327.60 feet; thence, 27'h South 75 °26'48" West, a distance of 183.51 feet; thence, 28' South 66 °34'48" West, a distance of 295.82 feet; thence, 291" South 34 °15'58" West, a distance of 374.92 feet to a point on the northerly line of the land described in recorded in Book 228 at Page 363 of Official Records of said county; thence along said northerly line, 30'h South 89 °57'17" West, a distance of 158.59 feet to a point on the easterly line of the land described in deed recorded as Instrument Number 94- 107968 of Official Records of said county, said point being on a curve concave southeasterly having a radius of 370.00 feet, a radial line to the center of said curve bears South 63 °50'25" East; thence along said curve and said easterly line the following six courses, 315` Northeasterly an arc distance of 34.32 feet through a central angle of 5 °18'53 "; thence tangent to said curve, 32nd North 31 028'28" East, a distance of 381.41 feet; thence, 33`d North 33 04328" East, a distance of 342.18 feet; thence, 34`" North 35 043'28" East, a distance of 38.44 feet; thence, 35 `" North 34 °35'51" East, a distance of 305.06 feet; thence, Ordinance No. 299 Page 44 36th North 54 016'32" West, a distance of 4.00 feet to said easterly line of Walnut. Canyon Road; thence along said easterly line the following three courses, 37th North 35 043'28" East, a distance of 955.65 feet; thence, 38th North 05 013'28" East, a distance of 219.57 feet; thence, 39`h North 17 013'28" East, a distance of 119.37 feet to the Point of Beginning. The above described parcel of land contains 78.93 Acres, more or less, and is delineated on the attached Exhibit "B ". SAND <c� �•i� 1 • Fs. JOSEPH P. .24. Zc - v TENNYSON, JR. Joseph P. Tennyson, Jr. Date * EIP. 12/31/04 LS 5983 (Exp. 12/31/04) s NO. 59 r,�rE DCA�`fo,� v! { V Page45 No. 299 EX�1J.�I 1 Page 45 it 11 (TRACT NO. 5130 BOUNDARY) L1 l b V \J' G7 OQ Q!l DOCUMENT LEGEND ® INSTRUMENT NUMBER 93- 093575 O.R. © INSTRUMENT NUMBER 92- 214837 O.R. © INSTRUMENT NUMBER 94- 107968 O.R. SHEET 1 OF 2 _. > Jj p, t'"'p R r M i 5) NOTE: SEE SHEET 2 FOR TABULATED BOUNDARY DATA LANp SG JOSEPH P. o TENNYSON, JR. EXP. 12/31 /04 . •� * NO. 5983 0' 200° 400' 80 0' '� ;JOSEPH P. TENNYSON, JR. DATE y Q, a �� SCALE: 1" =400' VLS 5983 (EXP. 12- 31 -04) STgTE OF ._... ... ^ - ^. ^.. - ^.. ^•�•, ,•� •. �. �r un .• UCKIMion rn oznni (AnS) 9qA -ro77 N J r P O N N ml Ordinance No. 299 EXHIBIT ��B 11 (TRACT NO. 5130 BOUNDARY) LINE DATA NO BEARING DISTANCE Lt N8957'13 "E 1499.39' L2 S0005'32 "E 733.24' L3 S89'57'13 "W 424.20' L4 S0005'32 "E 3.02' L5 S0002'53 "E 599.66' L6 S89'46'50 "W 65.01' L7 S0005'1 8 "E 599.74' L8 S8954'42 "W 35.72' L9 S00'05'1 8 "E 400.00' L10 589'57'17 "W 792.58' Ltt N0000'28 "E 177.79' L12 N73'10'28 "E 192.15' L13 N45'58'43 "E 46.46' L14_ N09'57'32 "W 161.38' L16 S8959'28 "W 250.81' L18 N5829'46 "E 89.92' L19 N11'28'09 "W 151.26' L20 S78'49'18 "W 253.55' L21 S1 4'21'22 "E 86.53' L22 S02'21'22 "E 118.93' L24 S64'42'28 "W 49.62' L25 NO2'21'22 "W 137.86' L26 N14'21'22 "W 327.60' L27 S7526'48 "W 183.51' L28 S6634'48 "W 295.82' L29 S34'1 558'W 374.92' L30 58957'17 "W 158.59' L32 N31'28'28 "E 381.41' L33 N33'43'28 "E 342.18' L34 N3543'28 "E 38.44' L35 N34'35'51 "E 305.06' L36 N5416'32 "W 4.00' L37 N3543'28 "E 955.65' L38 N0513'28 "E 219.57' L39 N1713'28 "E 119.37' CURVE DATA NO DELTA RADIUS LENGTH C15 10'13'25" 170.00' 30.33' C17 11'26'39" 830.00' 165.78'. C23 1'03'50" 830.00' 15.41' C31 518'53" 370.00' 34.32' R "ADIAL BEARING DATA N0 EB ARING RB1 N10'13'57 "W R82 524'13'42 "E R83 S63'50'25 "E Ipm-,;7 I nccir_m R. CIIR1/FY wr 4171 MAPk FT 4T Nn 4A VFNTIJRA. CA 93003 (805) 654 -6977 11 SHEET 2 OF 2 �I 0 N N m Ordinance No. 299 Page 47 EXHIBIT "B" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: Moorpark 150, LLC 21900 Burbank Blvd., Suite 114 Woodland Hills, CA 91367 Attn: Ed Pickett Ordinance No. 299 Page 48 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. 299 was adopted by the City Council of the City of Moorpark at a regular meeting held on the 21st day of January, 2004, and that the same was adopted by the following vote: AYES: Councilmembers Harper, Millhouse, Parvin, and Mayor Hunter NOES: Councilmember Mikos ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 2nd day of June, 2004. Deborah S. Traffenste , City Clerk (seal)