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Home My WebLink AboutAG RPTS 2001 1126 PC REG (2)MOORPARK 799 Moorpark Avenue Moorpark, California 93021 (805) 517 -6200 PLANNING COMMISSION MEETING AGENDA November 26, 2001 7:00 p.m. Next Resolution No. PC- 2001 -419 1) CALL TO ORDER: 2) PLEDGE OF ALLEGIANCE: 3) ROLL CALL: Janice Parvin, Chairperson William F. Otto, Vice Chairperson Mark DiCecco Paul Haller Kipp Landis ------------------------------------------------------------------- Any member of the public may address the Commission during the Public Comments portion of the Agenda, unless it is a Public Hearing or a Presentation /Action /Discussion item. Speakers who wish to address the Commission concerning a Public Hearing or Presentations /Action /Discussion item must do so during the Public Hearing or Presentations /Action /Discussion portion of the Agenda for that item. Speaker cards must be received by the Secretary for Public Comment prior to the beginning of the Public Comments portion of the meeting and for Presentation /Action /Discussion items prior to the beginning of the first item of the Presentation /Action /Discussion portion of the Agenda. Speaker Cards for a Public Hearing must be received prior to the beginning of the Public Hearing. A limitation of three minutes shall be imposed upon each Public Comment and Presentation /Action /Discussion item speaker. A limitation of three to five minutes shall be imposed upon each Public Hearing item speaker. Written Statement Cards may be submitted in lieu of speaking orally for open Public Hearings and Presentation /Action /Discussion items. Copies of each item of business on the agenda are on file in the office of the Community Development Department/Planning and are available for public review. Any questions concerning any agenda item may be directed to the Community Development Department at 517 -6228. In compliance with the Americans with Disabilities Act, if you need assistance to participate in this meeting, please contact the City Clerk's Department at (805) 517 -6223. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting (28 CFR 35.102- 35.104; ADA Title II). 011126 -pca 11/21/019:06 AM OPacket to CM OPacket to CC PATRICK HUNTER CLINT HARPER ROSEANN MIKOS KEITH F. MILLHOUSE JOHN E. WOZNIAK Mayor Mayor Pro Tem Councilmember Councilmember Councilmember PLANNING COMMISSION MEETING AGENDA November 26, 2001 Page 2 4) PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS: 5) REORDERING OF, AND ADDITIONS TO THE AGENDA: 6) CONSENT CALENDAR: A) Minutes of Planning Commission Meeting of October 15, 2001 B) Minutes of Special Joint City Council /Planning Commission Meeting of October 22, 2001 7) PUBLIC COMMENTS: 8) PUBLIC HEARINGS: A) Consider Development Agreement No. 2001 -01 for West Pointe at North Ranch (General Plan Amendment 99- O1, Zone Change 99 -01, Residential Planned Development 99 -02 and Vesting Tentative Tract Map 5187) on the Application of West Pointe Homes, Inc. Staff Recommendation: 1. Open the public hearing, take public testimony and close the public hearing; 2) Adopt Resolution No. PC 2001- recommending to the City Council approval of Development Agreement No. 2001 -01. 9) DISCUSSION ITEMS: 10) ANNOUNCEMENTS AND FUTURE AGENDA ITEMS: 11) ADJOURNMENT: 1) 2) 3) 4) 5) 6) 7) ITEM Planning Commission, City of Moorpark, California Minutes of Special Meeting of October 15, 2001 Page 1 CALL TO ORDER Chair Parvin called the meeting to order at 7:09 p.m. PLEDGE OF ALLEGIANCE Community Development Pledge of Allegiance. ROLL CALL Director, Wayne Loftus, led the Janice Parvin, Chair William F. Otto, Vice Chair Mark DiCecco, Commissioner Paul Haller, Commissioner Kipp Landis, Commissioner Commissioner's Landis, Haller, DiCecco, Vice Chair Otto, and Chair Parvin, were present at the meeting. Staff attending the meeting included Wayne Loftus, Community Development Director; John Libiez, Planning Manager; Walter Brown, City Engineer; Laura Stringer, Senior Management Analyst; and Gail Rice, Secretary II. PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS None. REORDERING OF, AND ADDITIONS TO THE AGENDA None. CONSENT CALENDAR None PUBLIC COMMENTS None. 8) PUBLIC HEARINGS A) Consider an Amendment to the City of Moorpark Zoning Code Related to Recreational Vehicle Parking and Storage; Zoning Ordinance Amendment No. 2001 -01 (Applicant: City of Moorpark) . Staff Recommendation: \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 2 1) Accept public testimony and close the Public Hearing; 2) Adopt Resolution No. PC -2001- recommending to the City Council approval of an amendment to the Zoning Ordinance defining standards and criteria for recreational vehicle parking and storage. Wayne Loftus introduced John Libiez who provided the staff presentation (reference staff report, dated October 11, 2001). Mr. Libiez informed the Commission that revisions to the draft Ordinance had incorporated Commission comments from previous meetings, and that a clear copy and a redline edition had been provided in the packet, including extractions from the Code. Mr. Libiez summarized the purpose of the Ordinance and revisions that had been incorporated into the draft Ordinance, and added that the Ordinance, as drafted, would not take effect until sixty (60) days after its adoption, an additional thirty (30) days more than normal. Commissioner Haller questioned Page 5 of the Ordinance, asking if it would apply to recreational vehicle (RV) parking in the back of commercial or industrial lots. Mr. Libiez responded that it would allow for vehicle storage as a primary use or secondary use through a Conditional Use Permit (CUP) . Mr. Loftus provided additional clarification and discussed future options. Commissioner Haller, referencing page 6, questioned the limit of thirty (30) days total for a calendar year and questioned what happened to fourteen (14) days which had originally been allowed. Mr. Libiez responded that with the addition of limited parking and storage within the front yard setback, the fourteen (14) day owner permit would no longer be necessary. Commissioner Haller expressed concern with the front yard setback height restriction, relating to a homeowner who wanted to park his RV beyond the 72 -hour Vehicle Code limits. \ \MOR —PRI SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 3 Mr. Loftus discussed staff re- evaluation of the City's ability to enforce and monitor owner parking and storage over the 72 hours permitted by the Vehicle Code. Chair Parvin questioned whether the proposed Ordinance would resolve most of the complaints received by the City regarding recreational vehicles. Mr. Loftus responded that most would be resolved. He further stated public input had been less than anticipated by staff, and that the current draft Ordinance was a more balanced solution to parking of RV's. Chair Parvin commented, that in addition to the sixty (60) days to comply, could the requirements be mentioned on our website, along with an announcement on Channel 10. Mr. Loftus responded that staff would look into both of those excellent recommendations. Chair Parvin opened the meeting to public comment (the Public Hearing having been continued open). James Hartley, 5950 Gabbert Road, Moorpark, CA Mr. Hartley discussed the difficulty with receiving notice and concerns with understanding the impact of the proposed Ordinance on his property. Discussion between Mr. Hartley and staff ensued concerning specifics of his vehicles and impacts of the Ordinance. Mr. Hartley further expressed his concern with the potential for fees to be assessed. Chair Parvin closed the Public Hearing. Commissioner DiCecco questioned whether Mr. Hartley's vehicle would be subject to city review. Mr. Libiez responded that under the current draft, parking /storage of recreational vehicles anywhere on \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 4 the lot (except in the R -2 Zone) would be subject to a Zoning Clearance. Commissioner DiCecco commented that although some residents would like the proposed Ordinance, some would not, and that the proposal strikes a balance. He commented to the lack of existing off -site storage, suggesting a re -visit to the Ordinance, once additional off -site facilities are available in the City. He further stated that he was comfortable with the proposal. Commissioner Haller commented that he was satisfied with the wording and recommended forwarding it to the City Council. Commissioner Landis requested clarification of when a Permit /Zoning Clearance is required. Mr. Libiez provided clarification of the Permit /Zoning Clearance requirements, process and fees necessary under the proposed Ordinance. Additional discussion ensued between Commissioner Landis and staff regarding the permit process and fee requirements, with Mr. Loftus concluding that staff recommended some form of permit and fee to ensure enforcement. Commissioner Landis summarized the two (2) options available: 1) Zone Clearance (a $44 dollar fee) to store a vehicle permitted by a certain zone. 2) Long term parking - parking on the street. Mr. Loftus discussed the two (2) options and added that it would be up to the City Council to establish the fee for the long -term parking for visiting, recreational vehicles. He further discussed the requirements for visitor parking per the draft Ordinance. Commissioner Landis expressed agreement that not all people are going to be happy and stated his concerns as: 1) Definition that treats all RVs the same. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 5 2) Driveways as 3) Defining a different c Associations 4) Safety issue front. an area of property rights. citywide standard where there are :ommunities, some with Homeowner's and CC &R' s . with size of some RV's parked in the Commissioner Landis concluded that the Ordinance should provide for shielding of RV's, where possible, not impinge on property rights, require removal of debris and covering of vehicles, where appropriate. He continued with comments that the Ordinance should be delayed to allow development of off -site storage opportunities in the City. Commissioner Otto echoed previous comments concerning balance, providing a summary of the progression of the Ordinance, from its initially very non - permissive nature, having taken the RV owner into consideration and the difficulty of having different requirements for different neighborhoods, stating that a "one size fits all" type of Ordinance is necessary. He commented that it was impossible to make everyone happy, but that it probably could not be improved much further and that he supported sending the Ordinance to City Council with the Commission's recommendation. Chair Parvin agreed with comments being made by other Commissioners. She discussed her change in perspective since the start of the review process. She acknowledged the different character of neighborhoods and commented to re- visiting the Ordinance in the future. MOTION: Commissioner DiCecco moved and Commissioner Haller seconded the motion to approve staff recommendation to adopt Resolution No. PC 2001 -415, recommending City Council approval of an Amendment to the Zoning Ordinance. Motion passed with a 4:1 roll call vote, Commissioners DiCecco, Haller and `,.Otto and Chair Parvin voting Aye, Commissioner Landis voting No. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 6 8B) Appeal 2001 -05 (Applicant: Hollister) An appeal of the _Conditions of Approval for Administrative Permit No. 2001 -10, located at 6086 Gabbert Road. The applicant is requesting to eliminate or modify Conditions lb, 2b, 2c, 2f, 2g, 31 7, 4, and 6. Staff Recommendations: 1) Accept public testimony and close the public hearing; 2) Adopt Resolution No. PC -2001- denying Appeal No. 2001.02. Mr. Loftus provided the staff presentation and stated that this item was originally scheduled for the September 24, 2001, Planning Commission meeting and continued to October 15, 2001, because Applicant did not receive adequate notice. He referenced the staff report from the September 24, 2001, meeting in which staff addressed each one of the appealed conditions, providing a summary of the condition, the applicant's appeal issues and staff's response and recommendation. Mr. Loftus concluded that staff's recommendation is for denial. Mr. Loftus expressed his concern regarding applicant's€::. representative having not followed protocol, by distributing material directly to the Planning Commission rather than through the Community Development Department. Commissioner Haller questioned the previous zoning clearances and non - conforming uses. Mr. Loftus provided a summary of the chronology and history of code violations on the property, including very recent violations. Commissioner Haller questioned if permission was granted by owner to remove the prior unit. Mr. Loftus responded permission by the ownE the owner, at the Administrative Permit discussed the issues second units. that he had no knowledge of ►r to remove the unit but that City's request, signed the application. Mr. Loftus of lessee vs. owner - occupied Commissioner DiCecco requested clarification of the issues regarding the original unit prior to applicant \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 7 moving on to the property, the "existing unit" that replaced the "prior unit," and the proposed unit. Mr. Loftus responded with a summary of the issues regarding the non - permitted status of the unit and State Law requirements for manufactured homes. Discussion ensued regarding whether permits had been obtained for the existing unit and whether any contact with the City was made prior to placing the unit, with Mr. Loftus responding no, and summarizing the types of permits that would have been required. Commissioner Landis also commented to the history of the units and the issue of a tenant replacing the prior unit. He questioned the non - conforming status of the primary unit, asking if the appellant was at issue with the requirement to bring the non - conforming unit up to code. Wayne Loftus responded affirmatively and summarized the code regulations regarding removal of a non- conforming unit and the requirement to bring the replacement unit to code. Discussion ensued between Commissioner Landis and Mr. Loftus regarding code provisions for second units, `owner occupancy" and issues of non - conforming uses. They further discussed the proposed covenant required of the appellant because she is not the owner of the property. Mr. Loftus commented that some of the appellant's concerns had been addressed in the staff report. Commissioner Landis questioned the time limitation of thirty (30) days to place a conforming unit on the site and the condition to remove the existing unit was sixty ( 6 0 ) days. Mr. Loftus responded that initially time was critical for the applicant to obtain a conforming unit and that staff felt that the time permitted for removal of the non - conforming, non - permitted unit was sufficient and provided flexibility for selling the unit. \ \MOR_PRI_SERV \City Share \Community Development \Everyone\ PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 8 Commissioner Landis questioned the size of the primary unit. Discussion ensued regarding the variations in information submitted regarding the square footage of the primary unit and the requirement for a certification statement, regarding the size of the primary unit and the relationship to the size of the secondary unit. Commissioner Otto questioned the issue of non- conforming use, the sequence of events regarding the Conditional Use Permit, and the status of the non- conforming unit. Mr. Loftus summarized the sequence of events and clarified the Conditional Use Permit. Discussion ensued between Commissioner Otto and Mr. Loftus regarding modifications that would or would not be permitted to retain a non - conforming use status. Commissioner Otto further questioned whether this property was considered one (1) parcel, with Mr. Loftus responding affirmatively. Commissioner DiCecco questioned what would happen if the non - conforming unit was removed. Mr. Loftus responded that the case would be closed. Chair Parvin questioned the number of parcels, referencing the information on the prior Zone Clearance. Mr. Loftus responded that the appellant's representative has assured staff that there was only one (1) parcel. Chair Parvin requested clarification of Mr. Kahn's statement regarding, direction from the Mayor, that staff's actions might have been in conflict with that direction. Mr. Loftus responded that Council's referral back to staff was procedurally. Chair Parvin requested clarification of funding opportunities for mobile units and affordable housing. Mr. Loftus responded, citing requirements and limitations regarding funding opportunities. Chair Parvin opened up the public hearing. \ \MOR_PRI_SRRV \City Share \Community Development \Everyone \PLANN ING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 9 Cindy Hollister, 6086 Gabbert Road, Moorpark, CA 93021 Ms. Hollister provided information regarding caring for her horses, and her attempt to provide better housing for a worker who lived on the property. Mitchel Kahn, Attorney for the Appellant, 300 Esplanade Drive, Suite 1170, Oxnard, CA 93030 Mr. Kahn responded to Mr. Loftus' comments regarding distribution of materials directly to the Commission. He discussed the submitted materials, including the chronology prepared by Ms. Hollister. Mr. Kahn commented to Ms. Hollister's confusion with the process and the information received from the City, referring to a letter in the packet, and apparent lack of communication between the City and Ms. Hollister. Mr. Kahn further discussed the decision to find a conforming unit and apply for an Administrative Permit. Mr. Kahn suggested that the requirements for paving and a new garage were never discussed by staff during the processing of the application, and that both he and Ms. Hollister were unaware of those requirements until they received the Final Conditions. Mr. Kahn discussed the existing conditions on the site and the option of using the barn for the required garage. He referenced sections of the Zoning Ordinance relating to paved parking, open storage and the size of the existing unit related to requirements for parking. Mr. Kahn further referenced the Condition relating to requirements for shielding open storage from view and additional citing of certain Code sections. He expressed his opinion that the Conditions, as imposed by staff, were not consistent with the Code. Mr. Kahn discussed parking requirements related to the size of the unit, and the desire to leave the existing unit on the site. He further discussed issues relating to ownership vs. leasing the property. He referenced a series of actions and confusion and inconsistencies that could likely be resolved, citing the language requirements in the proposed covenant. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 10 Mr. Kahn proceeded to review those items of concern. ❑ Fifteen (15) days to swap units: According to Mr. Kahn, Ms. Hollister desires the farm worker to remain on the site at all times, requiring that the existing unit not be removed until the new unit is placed. He suggested that Ms. Hollister may have problems finding a replacement unit should the unit reserved by Ms. Hollister be sold. Mr. Kahn requested additional time to inaugurate the use, stating that fifteen (15) days was not realistic. ❑ Mr. Kahn stated that he had serious problems with limiting the second unit to 30% of the size of the primary unit. ❑ Covered parking: Mr. Kahn stated that the entire, existing house does not necessarily meet current building codes, asking why covered parking was an issue. • Location of unit: Mr. Kahn stated that during the Administrative Hearing, Ms. Hollister was asked to suggest locations for the proposed unit but that staff did not specifically respond to the letter that was submitted and instead referenced in the staff report, the willingness to work with the applicant. • Fees: Mr. Kahn stated his opinion that perhaps the fees are not appropriate, if the Commission determines that the previous Zoning Clearance is still in force, but stating that fees should be paid if it was determined that the Administrative Permit process was appropriate. Commissioner Landis requested the clarification of the applicant's dispute of the city's right and reasonableness to bring the existing home up to conformance, because in his opinion, the Zone Clearance was not abandoned. Mr. Kahn responded affirmatively. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION 14INUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 11 Discussion between Commissioner Landis, Mr. Kahn, and staff ensued, regarding the following issues. ❑ The size of the property and whether there was one (1) parcel or two ( 2) . • The appellant's position that screening of open storage was not required, and how the Conditions 3 and 7 were being applied. • The issue of time limits to place the replacement unit, with staff's suggesting that sixty (60) days might be appropriate, and Mr. Kahn suggesting ninety (90) days. ❑ The size of the second unit as it relates to the size of the primary unit and the issue of the conflicting primary unit sizes submitted by the applicant, and staff's difficulty in determining the actual size of the unit resulting in the condition to require a certified measurement. ❑ The question of funding opportunities for retrofitting of mobile units. ❑ The size of available units meeting the criteria and questions regarding the relationship of the size of the second unit to the size of the primary unit and issues of variances, should the applicant not be able to find a unit that meets code requirements for size. Mr. Loftus provided information on the findings required by law, for a variance, and the difficulty in meeting those findings, should a variance be applied for. o Timing for removal of the second unit and staff's Condition to provide a surety to guarantee removal. Staff suggested sixty (60) days for removal, Mr. Kahn suggested six (6) months with elimination of the requirement for the surety. Discussion continued regarding cash surety, certificates of deposits and bonds, with Mr. Loftus stating that an incentive to fill the obligation was needed, citing the existing code violations and time span. \ \MOR_PRI_SERV \City Share\Comimnity Development \Everyone\ PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 12 Commissioner DiCecco questioned Mr. Kahn regarding the timef rame. Mr. Kahn responded, citing the chronology and summarizing the events. Commissioner DiCecco questioned whether Mr. Kahn's objections were primarily economic, with Mr. Kahn responding affirmatively. James Hartley, 5950 Gabbert Road, Moorpark, CA 93021 Mr. Hartley stated that he was a property owner of a parcel adjacent to Ms. Hollister, and spoke in support of Ms. Hollister's operation and the issues of providing housing for the farm worker and his family. He further discussed the status and types of driveway on various properties in the area. Commissioner DiCecco questioned Mr. Hartley regarding his historical perspective regarding units on the site. Mr. Hartley responded with a summary of the history of the second unit. Chair Parvin questioned Mr. Hartley as to whether he had a gravel driveway and how many people in the area had gravel driveways. Norm Schultz, 163 Darlene Lane, Moorpark, CA Mr. Schultz commented to his support for Ms. Hollister's operation and his working relationship on the property. He stated his support for Mr. Hartley's comments. Chair Parvin closed the public hearing. Commissioner Haller expressed his sympathy and desire to see the issues resolved. Commissioner Haller commented to the inappropriateness of the content of Mr. Kahn's correspondence and delivering material directly to the Commission members. He suggested \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 13 to Mr. Kahn that correspondence should be kept to the facts, working toward an acceptable solution. Commission Haller identified the following key issues: ❑ That with the original unit being removed, the original Conditional Use Permit was null and void, and that a non- conforming use can not be replaced with a non - conforming use. ❑ A building permit for the second dwelling unit was never pulled, a clear violation of the Zoning Code. ❑ Size of the second unit is specific at 30% of the primary dwelling unit. Verification of square footage must be obtained. Commissioner Haller stated that he was in favor of denying the appeal, but recommended that it be worked out to meet city requirements and appellant's desire to keep the second unit on the property. Commissioner DiCecco comments included: ❑ Appreciation for the appellant's work with the horses and her concern with providing decent housing for all economies but questioned the appellant's actions in the process and timeframe. ❑ Concern with the inconsistency of the square footage of the unit and the size of the second unit that would be allowed. ❑ Comfortable with using the barn for a garage. ❑ All - weather surface that would be the minimum allowed by the Ventura County Fire Department might be more expensive than paving. Screening the dumpster with hedges might be cost effective. ❑ Timeframe to remove the unit reasonable. ❑ Many codes in black and white that seem to be overlooked by the appellant. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 14 Commission Otto expressed agreement with Commissioner DiCecco on most of these issues, commenting specifically to the requirement of size of the second unit not exceeding 30% of primary unit. He expressed concern that this issue was the limiting factor. Lengthy discussion between the Commission and staff ensued regarding the various issues and possibility for variance to the Zoning Code, concluding in the following Commission recommendations: ❑ Condition No. lb: The time for placement of the replacement manufactured home to be extended to sixty (6 0 ) days. ❑ Condition No. 2b: The owner of the property must submit a covenant declaring that the occupant of the existing single- family, primary residence has the right to place a manufactured home /second dwelling on the site for use by an employee. • Condition No. 2c: The size of the second unit on the property shall not exceed thirty percent (30 %) of the size of the primary unit. Also, the applicant must allow a city employee to measure the primary unit or submit a statement from a surveyor or architect certifying the size of the primary unit. • Condition No. 2f: The applicant will be permitted to use the barn on the property for the garage, provided it has parking for two ( 2 ) cars. ❑ Condition No. 2g: The applicant is required to pave the driveway with an all- weather surface, which meets the Ventura County Fire Department (VCFD) standards. ❑ Condition Nos. 3 and 7: Applicant is required to plant shrubbery around the trash enclosure or landscape this area, so as to hide the dumpster. ❑ Condition No. 4: Removal of the existing unit shall be done within sixty ( 60 ) days, and that a surety of $2,000 is required of the Applicant. ❑ Condition No. 6: Outstanding processing fees shall be paid, as lowered by the City to $1,320. \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc Planning Commission, City of Moorpark, California Minutes of October 15, 2001 Page 15 MOTION: Commissioner Haller made a motion to approve staff recommendation, to adopt Resolution No. PC 2001 -416 denying Appeal No. 2001 -05, and directed staff to modify the Conditions for Administrative Permit No. 2001 -10, as recommended by the Commission. Chair Parvin seconded the motion. Motion passed with a unanimous roll call 5:0 voice vote. 9) DISCUSSION ITEMS A) Cancellation of the meeting of November 1: national holiday, and Tuesday - November 13, By consensus, the recommendation. regular Planning Commission ?, 2001, due to Veterans Day, a setting a special meeting for 2001, at 7:00 p.m. Commission approved staff's 10) ANNOUNCEMENTS AND FUTURE AGENDA ITEMS Mr. Loftus provided information on the Affordable Housing Workshop to be conducted at a Special Joint Meeting with the City Council on October 22, 2001. 11) ADJOURNMENT Commissioner Landis moved to adjourn the meeting to a Special Joint City Council /Planning Commission Meeting on Monday, October 22, 2001, at 6:30 p.m. Commissioner Haller seconded the motion. The meeting was adjourned at 11:30 p.m. Motion passed with a 5:0 voice vote. Janice Parvin, Chair ATTEST: Laura Stringer Senior Management Analyst \ \MOR_PRI_SERV \City Share \Community Development \Everyone \PLANNING COMMISSION MINUTES \101501 pcm.doc ITEM (0 &..e - - sup"" MINUTES OF THE CITY COUNCIL AND PLANNING COMMISSION Moorpark, California October 22, 2001 A Special Meeting of the City Council and the Planning Commission of the City of Moorpark was held on October 22, 2001, in the Council Chambers of said City located at 799 Moorpark Avenue, Moorpark, California. 1. CALL TO ORDER: Mayor Hunter called the City Council to order at 6:40 p.m. Chair Parvin called the Planning Commission to order at 6:40 p.m. 2. PLEDGE OF ALLEGIANCE: Commissioner Paul Haller led the Pledge of Allegiance. 3. ROLL CALL: City Council Present: Planning Commission Present: Planning Commission Absent: Councilmembers Harper Mikos, Millhouse, Wozniak and Mayor Hunter. Commissioners DiCecco, Haller, Landis, and Chair Parvin. Commissioner Otto Staff Present: Steven Kueny, City Manager; Hugh Riley, Assistant City Manager; Wayne Loftus, Community Development Director; Walter Brown, City Engineer; John Libiez, Planning Manager; Nancy Burns, Redevelopment Senior Management Analyst and Laura Stringer, Senior Management Analyst, Community Development. 4. PUBLIC COMMENT: None. 5. PRESENTATION /ACTION /DISCUSSION: A. Consider Affordable Housing Workshop on the Structure, Financing, and Processes of Affordable Housing Projects. Staff Recommendation: conduct workshop. (No agenda report.) S: \Community Development \Everyone \PLANNING COMMISSION MINUTES \011022 ccpcm sp.doc Minutes of the City Council and Planning Commission Moorpark, California Page 2 October 22, 2001 Mr. Riley introduced the moderator for the workshop, Mr. Bob Burrow, Director of Community Development, City of Camarillo. Mr. Riley provided a summary of Mr. Burrow's planning background and affordable housing project experience. Mr. Burrow presented an overview of affordable housing issues in Ventura County, including: state mandated affordable housing goals, the challenge of integrating affordable housing into the limited areas left for development, re- designation of older undeveloped neighborhood commercial areas to residential, Air Pollution Control District requirements, Air Quality Management Plan limitations, providing a variety of affordable housing types, and redevelopment of older areas. Mr. Burrow introduced the first speaker, Mr. Steve Whyte, Pacific Housing Advisors, consultant to LT Development, a developer proposing a multi- family project in Moorpark, with approximately twenty percent (20 %) of the units to be affordable. Mr. Burrow announced Mr. Whyte's topic, "Current Trends in Affordable Housing Development." Ms. Burns distributed Mr. Whyte's written materials. Mr. Whyte began his presentation discussing the thought process of the affordable housing developer, while drawing attention to the distributed chart titled "Community Arms Apartments." Mr. Whyte provided an overview of organizational structure and partnership structure required for economic success of an affordable housing project. Mr. Whyte next called attention to the grid titled "The Developer's Role in a Typical Affordable Housing Project," stating that it provided information regarding the relationship between the various financial partners and developers and outlined the developer's responsibilities in the process. Mr. Whyte concluded his presentation referring to the outline titled "Development Trends in Affordable Housing." Mr. Whyte expanded on positive trends, negative trends, developer's perspective on current tax credit equity market and current financing market, closing with a summary of new development product type opportunities. Minutes of the City Council and Planning Commission Moorpark, California Page 3 October 22, 2001 Mr. Burrow next introduced Mr. Art May, Vice President and Director of Architecture, U.S.A. Properties Fund, an affordable housing development company currently seeking a general plan amendment and zone change to develop a senior housing project in the City of Moorpark. Mr. Burrow announced Mr. May's topic; "Top 10 Barriers to Affordable Housing." Ms. Burns distributed an outline of Mr. May's presentation. Mr. May discussed the top ten barriers to affordable housing and suggested remedies: 10. Crummy Sponsors 9. Unreceptive City 8. Zoning Constraints 7. Time 6. Conditions of Approval Mayor Hunter questioned what the off -site conditions might include. Mr. May responded that they could include offsite water, sewer and street improvements through areas that might be developed later. Mayor Hunter questioned whether it was the placement of these conditions on the project or the timing that was the issue. Mr. May responded that it was the placement of the conditions at issue. Mr. May continued his presentation with item number 5 from his outline: S. Predevelopment Funds 4. Fees 3. Financing 2. Financing Gap 1. Time Minutes of the City Council and Planning Commission Moorpark, California Page 4 Mr. Burrow introduced Mr. Pacific Communities, and development of single - family units and payment of in -lieu Mr. Chung' s topic; 'Welcome Affordable Housing." October 22, 2001 Nelson Chung, President, developer of a planned homes including affordable fees. Mr. Burrow announced Home to the Minefield of Ms. Burns distributed a copy of Mr. Chung's presentation materials. Mr. Chung provided a Power Point type presentation, citing the goal of affordable housing ownership, and some of the obstacles for affordable housing. Mr. Chung explained a spreadsheet analysis of maximum purchase prices for various levels of affordable units in San Diego. Mr. Chung further explained the assumptions used in the analysis including current interest rates. He provided information on the history of very high interest rates during the early 1980's and encouraged working as a team to capture the timing on the current low rates. He further cited examples of the impact of increased interest rates on monthly payment amounts. Mr. Chung continued, explaining the pro -forma included in the distributed materials, citing the data included and the conclusion of limited or no profit for certain scenarios of affordability. He discussed the difficulty of providing Very, Very Low and Very Low "for- sale" housing opportunities. Mr. Chung concluded, urging that working as a team could create affordable housing opportunities without cutting into city coffers. Mr. Burrow introduced Mr. Jon Goetz, Attorney, Stradling, Yocca, Carlson and Rauth, consultant to The Olson Company, a major developer of affordable housing opportunities. Mr. Burrow stated that he had worked with The Olson Company on several affordable projects in Camarillo. Mr. Burrow announced Mr. Goetz's topic; "Affordable Home Ownership Programs." Ms. Burns distributed several handouts provided by Mr. Goetz. Mr. Goetz discussed the affordable housing components for redevelopment, including low and moderate income housing funds, inclusionary housing and replacement housing. He further discussed the use of covenant requirements Minutes of the City Council and Planning Commission Moorpark, California Page 5 October 22, 2001 comparing the problems of resale restrictions to the more enforceable use of loan format /buyout with deeds of trust held by the Redevelopment Agency. Mr. Goetz stated that in addition to providing a way to monitor sales, the deed of trust also provides an opportunity for the agency to reinvest the proceeds of equity sharing sales. Mr. Goetz continued with a comparison of income limits for redevelopment agencies in Ventura County. Mr. Goetz further discussed the types of assistance that redevelopment agencies might provide for developers of affordable housing projects. These included land acquisition and resale, development loans and grants, second trust deed loans, and density bonus. Mr. Goetz concluded with a brief discussion of financing of single - family for -sale units. Mr. Burrow briefly summarized the presentations. Mr. Kueny stated that he had asked Mr. Whyte to provide clarification of tax credit financing. Ms. Burns distributed a financial model for a project in Santa Clarita. Mr. Whyte explained the process of developing the financial model, with emphasis on income restrictions and the Sources and Uses of Funds including the impact of the tax credit equity on project feasibility. He further stated that timing was critical because many activities were tied to bond financing approval. Mr. Burrow offered that the panel was open to questions. Mayor Hunter opened the discussion for questions from the City Council and the Planning Commission. Councilmember Millhouse questioned if limits for qualifying for affordable housing could be more restrictive than just income, like being a first time home buyer or current resident of the city. Mr. Goetz responded yes, that requirement for being a first time home buyer was a good suggestion, but cautioned that the city attorney review the legal requirements for restricting residency. Minutes of the City Council and Planning Commission Moorpark, California Page 6 October 22, 2001 Mr. Millhouse further questioned the issue of moderate affordability being in the $300,000 dollar range, and whether this type of affordable housing was providing a "windfall" opportunity. Mr. Burrow commented that Camarillo had restricted some affordable housing opportunities to residents or people who already work in the community. Mr. Chung commented that their program provided for -sale housing to Low and Moderate Income families while providing in -lieu fees for Very Low Income housing. He further encouraged priority to local residents and that the program allows first time buyers into the ownership market. He further stated that the second trust deed and equity sharing brought money back to the city. Mr. May commented that the difference between for -sale and rental units, stating that they were seeing "move - ups" due to savings generated by affordable housing. Councilmember Harper commented that higher -end projects were often reluctant to do inclusionary housing, and that in -lieu fees take time to implement actual housing. Mr. Goetz responded that inclusionary housing works better in very large developments. Mr. Chung commented that his recent experience was that high -end owners are more tolerant of inclusion of lower end housing in the same development. Councilmember Mikos requested a definition of an Inclusionary Zoning Ordinance. Mr. Goetz responded that an Inclusionary Zoning Ordinance would require a certain percentage of residential units in a development be restricted to an affordable level and that there is a provision for in -lieu fees. Councilmember Wozniak questioned the concept of land dedication to the city for development of affordable units and the pooling of developer efforts to achieve actual housing products. Mr. Burrow responded that many developers were not prepared to deal with small property developments. Minutes of the City Council and Planning Commission Moorpark, California Page 7 October 22, 2001 Commissioner Landis commented on his discussion with a representative from Habitat and the opportunity for zero percent (0%) loans. He further commented that there was often a fear of what affordable housing would look like, and suggested that there might be practical ways to assist with the purchase rather than diminishing the quality. Mr. Goetz responded that quality does not need to be compromised, and that rigorous economic analysis should be done. Mr. Chung cautioned against reducing the cost of construction, and suggested the use of financing programs. Mr. May commented on his experience with rental units, and that different levels of affordability can be made to appear the same. Commissioner DiCecco commented that it was the Commission's preference that the developer secure land for development of units rather than in -lieu fees, and asked about the concept of city set -aside without ownership. Mr. Burrow added that Housing Elements were required to identify vacant sites. Chair Parvin questioned covenant requirements regarding resale restrictions. Mr. Goetz responded by describing a project where a city actually forgot they had re -sale restrictions and the issue was not brought forward until several sales had already occurred. He stated that his experience was that no one takes responsibility for policing this type of covenant, and recommended the deed of trust method. Mayor Hunter thanked the panel. Minutes of the City Council and Planning Commission Moorpark, California 6. ADJOURNMENT: Page 8 October 22, 2001 Mayor Hunter adjourned the City Council meeting at 8:50 p.m. Chair Parvin adjourned the Planning Commission meeting at 8:50 P.M. Patrick Hunter, Mayor Janice Parvin, Chair ATTEST: Deborah S. Traffenstedt City Clerk ITEM .-4 0_. CITY OF MOORPARK PLANNING COMMISSION AGENDA REPORT TO: Honorable Chair and Members of the Planning Commission FROM: Laura Stringer, Senior Management Analyst AA DATE: November 15, 2001 (PC Meeting of 11/26/01) SUBJECT: Consider Development Agreement No. 2001 -01 for West Pointe at North Ranch (General Plan Amendment 99 -01, Zone Change 99 -01, Residential Planned Development 99- 02 and Vesting Tentative Tract Map 5187) on the Application of West Pointe Homes, Inc. BACKGROUND West Point Homes, Inc. is the developer of a proposed project with 250 residential units. The Planning Commission has previously considered this project, and on March 12, 2001, recommended approval to the City Council. The City Council is currently considering approvals for the project including General Plan Amendment (GPA) 99 -01, Zone Change (ZC) 99 -01, Residential Planned Development (RPD) 99 -02 and Vesting Tentative Tract Map (VTTM) 5187, and the related Final Environmental Impact Report (EIR). The project if approved by the City Council would supplant existing Tract No. 4620 that approved 66 five -acre lots for the property. A Development Agreement has been negotiated by a Council Ad Hoc Committee (Mayor Hunter and Councilmember Wozniak) and staff with the developer. On November 7, 2001, the City Council considered the Development Agreement and referred it to the Planning Commission for a public hearing. DISCUSSION A draft Development Agreement for the above referenced project has been prepared and was considered by the City Council on November 7, 2001, and consistent with Municipal Code Section 15.40 the City Council referred the Development Agreement to the S: \Community Development \Everyone \Development Agreements\ pc. 11. 26. 0l.agrpt.devagmt.westpointe.doc Planning Commission Agenda Report November 15, 2001 Page 2 Planning Commission for public hearing on November 26, 2001 and set December 5, 2001, as a public hearing date for the City Council. The City Council also suggested that consideration be given to including provisions for usage of photovoltaics (solar energy facilities) in the construction of residential units. The Ad Hoc Committee has not yet negotiated this potential provision with the developer. The draft agreement as presented for Commission consideration includes provisions deemed standard for such agreements previously approved the City Council. The agreement also includes items unique to this project. Section 6., Developer Agreements and Section 7., City Agreements contain the considerations provided by each party to the other. These two sections contain the critical aspects which the agreement is structured to address. The draft agreement included with the City Council Agenda Report (Attachment 1) is in legislative format showing changes from the City's Development Agreement with Fountainwood Agoura (SP -2). The SP -2 Development Agreement is the most recent development agreement approved by the City Council. SU14MARY The Planning Commission is being asked to review the agreement, comment, and adopt a resolution conveying a recommendation on the development agreement to the City Council. Commission's recommendation may be to amend sections of the agreement, delete provisions, add provisions, or adopt the agreement in its current form. STAFF RECOMENDATION 1. Open the public hearing, take public testimony and close the public hearing. 2. Adopt Resolution No. PC 2001- , recommending to the City Council approval of Development Agreement No. 2001 -01. Attachments: 1. City Council Agenda Report from the November 7, 2001 with the draft Development Agreement attached. 2. Resolution No. PC 2001- RESOLUTION NO. PC 2001- A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF MOORPARK, CALIFORNIA PROVIDING A RECOMMENDATION TO THE CITY COUNCIL OF THE CITY OF MOORPARK PERTAINING TO THE APPROVAL OF A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND WEST POINTE HOMES, INC. REGARDING CONTRACTUAL OBLIGATIONS RELATED TO THE DEVELOPMENT OF WEST POINTE AT NORTH RANCH (GENERAL PLAN AMENDMENT 99 -01, ZONE CHANGE 99- 01, RESIDENTIAL PLANNED DEVELOPMENT 99 -02 AND VESTING TENTATIVE TRACT MAP 5187) WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State Planning and Zoning Law provides that cities may enter into contractual obligations known as Development Agreements with persons having equitable interest in real property for development of that property; and WHEREAS, the owners of West Pointe at North Ranch (General Plan Amendment 99 -01, Zone Change 99 -01, Residential Planned Development 99 -02 and Vesting Tentative Tract Map 5187) have applied to the City of Moorpark to seek a Development Agreement between the city and said owners pursuant to Chapter 15.40 of the Moorpark Municipal Code; and WHEREAS, the Planning Commission of the City of Moorpark has previously reviewed the project Environmental Impact Report, General Plan Amendment, Zone Change, Residential Planned Development and Vesting Tentative Tract Map requests and has made recommendations to the City Council pertaining to the approval of said requests; and WHEREAS, the Environmental Impact Report prepared for General Plan Amendment 99 -01, Zone Change 99 -01, Residential Planned Development 99 -02 and Vesting Tentative Tract Map 5187 can be used for the Development Agreement since the Development Agreement relates to providing for the financing and or construction of various improvements and facilities relating to the project area that have already been addressed by the Environmental Impact Report for the project; and WHEREAS, the City Council desires that the Planning Commission evaluate and provide recommendations for revision, denial and /or approval of a Development Agreement between the City and Owners, and has provided the Commission with true copies of the Development Agreement; and ATTACHMENT Z Resolution No. PC -2001- Development Agreement No. 2001 -01 West Pointe Homes, Inc. Page No. 2 WHEREAS, a duly noticed public hearing was conducted by the Planning Commission on November 26, 2001 to consider the Development Agreement and to accept public testimony related thereto; and WHEREAS, the Planning Commission has considered all points of public testimony relevant to the Development Agreement and has given careful consideration to the content of the Development Agreement. NOW, THEREFORE, THE PLANNING COMMISSION OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The potential environmental impacts concerning this Development Agreement relates to and would provide for financing and construction of various improvements and facilities relating to the project area which have already been addressed by the Environmental Impact Report prepared for the General Plan Amendment, Zone Change, Residential Planned Development Permit and Vesting Tentative Tract Map. SECTION 2. The Planning Commission having conducted a public hearing on the form and content of a Development Agreement between the City of Moorpark and the owners of West Pointe at North Ranch, at the request of the City Council, hereby recommends that the City Council, at public hearing before said Council, approve the Development Agreement in the form and content presented to the Planning Commission on November 26, 2001. SECTION 3. The Planning Commission hereby finds: a. That the Development Agreement and assurances that said agreement places upon the project development of Residential Planned Development 99 -02 and Vesting Tentative Tract Map 5187 are consistent with the intent and provisions of the Final Environmental Impact Report. b. That the Development Agreement is consistent with the adopted general plan as amended by General Plan Amendment 99 -01. C. That the Development Agreement is necessary to insure the public health, safety and welfare. SACommunity DevelopmentlEveryonelResolutions and ConditionslRESO -DEV AGMTwestpointe.doc Resolution No. PC -2001- Development Agreement No. 2001 -01 West Pointe Homes, Inc. Page No. 3 SECTION 4. A copy of this Resolution, documents furnished by the public and minutes of the public hearing shall be furnished to the City Council. AYES: NOES: ABSENT: ABSTAINED: PASSED AND ADOPTED THIS 26th DAY OF November, 2001. Janice Parvin, Chair ATTEST: Deborah S. Traffenstedt Acting Community Development Director SACommunity DevelopmenAEveiyonelResolutions and ConditionslRESO -DEV AGMTwestpointe.doc MOORPARK CITY COUNCIL AGENDA REPORT TO: The Honorable City Council FROM: Steven Kueny, City Manager 14�i DATE: November 1, 2001 (CC Meeting of November 7, 2001) SUBJECT: Consider Proposed Development Agreement with West Pointe Homes, Inc. BACKGROUND: West Pointe Homes, Inc. is the developer for a proposed project with 250 residential units. The City Council is currently considering approvals for the project including Vesting Tentative Tract Map No. 5187, RPD No. 99 -2, General Plan Amendment No. 99- 1, Zone Change 99 -1, and the related Final EIR. The project, if approved, would supplant existing Tract 4620 that approved 66 five -acre lots for the property. A Development Agreement has been negotiated by a Council Ad Hoc Committee (Mayor Hunter and Councilmember Wozniak) and staff with the developer for consideration by the City Council. DISCUSSION: A draft Development Agreement for the above - referenced project has been prepared and is ready for Council action to refer it to the Planning Commission. The draft Agreement includes provisions considered standard for such agreements previously approved by the City Council as well as items unique to this project. Section 6., Developer Agreements, and Section 7., City Agreements, contain the considerations provided by each party to the other. The draft agreement attached to this report is in legislative format showing changes from the City's Development Agreement with Fountainwood Agoura (SP -2). The SP -2 Development Agreement is the most recent development agreement approved by the Council. ATTACHMENT City Council Agenda Report Re: West Pointe Homes, Inc., Development Agreement Page 2 November 1, 2001 (CC Meeting of 11/7/2001) It is proposed that consistent with Municipal Code Section 15.40, the City Council direct the Planning Commission to conduct a public hearing on the Development Agreement on November 26, 2001, and set December 5, 2001, as the public hearing date for the City Council on this matter. STAFF RECOMMENDATION: Refer the Development Agreement to the Planning Commission for a public hearing on November 26, 2001, and set December 5, 2001, as the City Council public hearing date. SK: db Attachment: Draft Development Agreement M: \ccagenda \West Pointe Homes Prop Dev Agr 1107 2001 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 WEST POINTE HOMES, INC. 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 WEST POINTE HOMES, INC., a Nevada Corporation, Ga4i-fe -r-n aen ; —Rarer r , the owner of real property within the City of Moorpark generally referred to as Vesting Tentative Tract Map 5187 (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 Developers 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 certif ication of the that eertain Meerpaick Highlands Sp e-i-f e P-lan. -Nea . Final Environmental Impact Report ( "the EIR") for the Project Approvals as defined in subsection 1.3 of this Agreement, the City Council of City ( "the City Council ") approved a mitigation monitoring program to insure compliance with the mitigation measures contained in the EIR ( "the Mitigation Monitoring Program "), approved General Plan Amendment No. 9S 2 - 99-01 ( " G PA 99-19S 2 " ) , and -Meek _Pj %A . T. a 'l ( 11 6 - 9 2 11 ) for approximately 4- 4-5350 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. S 4 99 -01 ( "ZC 9S 499-111). At 1.43. GP 9S 2, SP 9S 2 and ZG 9S 4GPA 99 -1, ZC 99 -1, Tract 5187 and RPD 99 -2 (collectively "the Project Approvals; individually "a Project Approval ") provide for the development of the Property as a master planned eemmianity—and the construction of certain off -site improvements in connection therewith ( "the Project "). 1.48. By this Agreement, City desires to obtain the binding agreement of Developer-s 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. 1.5f&. 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, eaeh— 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 -7. 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 GP 99 -19S 2. 1.78. On August 30, 1999 — 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. 1.87. On- SepteffibeY 15, 1994 —, the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing approved the Agreement by Ordinance No. 263 —("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". West Pointe Dev Agr 2001 -3- 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 Projects 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 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, deliver to City a written assumption agreement, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to West Pointe Dev Agr 2001 -4- 5. 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 building requirements that are then in effect (collectively "the Building Codes "). 4.4. Reservations and Dedications. All reservations and of land for public purposes that are the Property are set forth in the Project this Agreement. dedications applicable to Approvals and 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 Developers intend to avoid the result in Pardee by acknowledging and providing that Developers shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developers deems appropriate within the exercise of their subjective business judgment. west Pointe Dev Agr 2001 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 -5- adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property. 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, 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. West Pointe Dev Agr 2001 Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws "), except City Laws that: (a) change any permitted or conditional permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the 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 all appreve planning units ef SP 9S 2,, e-Y (g) modify the land use from what is permitted by the General Plan Land Use Element at the operative date of this Agreement or that prohibits or restricts the establishment or expansion of urban services including but not limited to community sewer systems to the Project. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire seven (7) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the fact that the final map may be filed in phases. - aeh— 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. West Pointe Dev Agr 2001 -7- 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 Developers 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 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. 5.6. Issuance of Building Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from any 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. In no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. West Pointe Dev Agr 2001 "�f1�'� •' �, 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 Mitigation Monitoring Program and any subsequent or supplemental program. 6.2. Any land within the Project area that is dedicated to the Moorpark Unified School District (MUSD), or any successor district, shall be deed restricted in the form of a covenant running with the land, as set forth in Exhibit "B" attached hereto and incorporated herein, to limit use of the land to public school facilities, kindergarten through 12th grade, and the covenant shall be recorded in the offices of the County Recorder of the County of Ventura concurrently with the deed transferring fee title to MUSD or a successor district. 6.3. 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. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the — Spee -1 f } e P-! 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. West Pointe Dev Agr 2001 On the operative effeetive date of this Agreement, the I amount of the Development Fee shall be Seven Thousand Eight Hundred Fifty DollarsThree Hundred De , . rs_ ($7,850.00:7,399. ) per residential unit and Thirty - Five Thousand, Three Hundred Twenty -Five Dollars ($35,325.00) Thirty Twe Theusand, Si(ght Hundred Fifty Del ,rs ($32, . 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 Speeifie Plan 9S 2 Tract 5187 by any increase in the I 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 SpeE Plan 9S 2 Tract 5187 (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. 6.5. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the - See- ifs -P! Property, Developer shall pay City a traffic mitigation fee as described herein ("Citywide Traf f is Fee ") . The Citywide Traf f is Fee may be expended by City in its sole and unfettered discretion. On the eeet ir=e -- operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Four Thousand Two Hundred Forty Dollars ($4,240.0009G.90) per residential unit, and Big t=c„ Tlfie% sand De l rs Nineteen Thousand Eighty Dollars ($19,080.00 ) per acre of institutional land on which the institutional use is located. Commencing on January 1, 2003, 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 West Pointe Dev Agr 2001 -10- 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. 6.6. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the Spee ie P! 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 Thirty Dollars ($2,030.00) Five H per residential unit, and Six Thousand Four Hundred Twenty- Eight Dollars ($6,428.00) T-we Trei:isa-n d, Twe Hundred per gross acre of institutional land on which institutional use is located. This shall satisfy Developer's Casey Road /Gabbert Road Area of Contribution (AOC) obligation for the Property. The City may use these monies for any purpose related to the Casey Road /Gabbert Road AOC or any other lawful purpose at its sole and unfettered discretion. City agrees to accept these payments as full satisfaction of Developer's obligation to pay Casey Road /Gabbert Road AOC fees. Commencing on Gete er 1, 20021 January 1, 2005, and annually thereafter, the Community Services Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all In Lieu 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 June September over the prior month of jun—e September. In the event there is a decrease in the CPI for any annual indexing, the In Lieu Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. West Pointe Dev Agr 2001 _11_ 6.8. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, the Speeifie Plan—and E I R . 6.9. 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 Nine Thousand Dollars ($9,000.00) for each residential dwelling unit and Fifty Cents ($.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 5187 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 5187 (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. shall " $te, —at its . .re-l-2--- eest rrier-- e}_rer,e --rte= West Pointe Dev Agr 2001 -12_ see - - - - -- .- W o o - - -c .illy -. - - •• - - _ 6.8. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, the Speeifie Plan—and E I R . 6.9. 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 Nine Thousand Dollars ($9,000.00) for each residential dwelling unit and Fifty Cents ($.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 5187 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 5187 (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. shall " $te, —at its . .re-l-2--- eest rrier-- e}_rer,e --rte= West Pointe Dev Agr 2001 -12_ 1 -� -- - - - - -- -- - - - -- o. =o o- tile t v - Z,- s - - - _ -- -• _ - c - _- = -- c - 1 -� -- - - - - -- -- - - - -- o. =o - off - 1 / tile t v _ s - - - 1 / tile t v r, the West Pointe Dev Agr 2001 - 1 3 - t,0 0 Ui SO - - - o = - - - c - - o _- = -- c - West Pointe Dev Agr 2001 - 1 3 - t,0 0 Ui SO IS �- - -= Owl _ _ - - - . • - - I _ _ • . • rp • Ow 111" g _ - - - • - - _ _ _ - - I . _ • - - • - ' - - MIN • " • M • • - _ M7_ _ WPM - Rlwiili I - - O- - - " - - 1 _ _ will", _ - • • • - r -14- West Pointe Dev Agr 2001 Developer agrees that the above - described payments deseribed park land shall be deemed to satisfy the "Quimby" requirement set forth at California Government Code Section 66477 et seq. for the Property. Pr op e rt y . -a14 s � bp�g subsequent s; b,; h i , the S e e f i eTlan area fer a i ef S:79 residential units. Bevelepe_r shall -z ] l s e the a b e re d� i b e-, d i ffip r ems, . e t and the v a a t,.a i i v � �.. ,..a L ,.., v a a � U a✓ v Y �,,, t..l �,,. J �... _� �C City's s andard s ,Lid si a agreement prier te the App r V Y 1 o f t tit first f i r l t a t Tr tip r the first final payee! fnap within the Gpeeifie Plan area. Any dwelling ,, r, i units in T e� e s r, f C -7 n ,�,a any i T�, t- i F,, t- i e-, ,-, l x.1111 1. J ce. Z'�� +� —.LAS Quimby } 14 �l�a + r + L.B r + . rLrin r s L sryest- i e C TT-1 --.eaea ' t- ' e� t-e� t1-, required eenstruetie �! �.aa,.e V ,... `. �. 1 V i a V• 1 1 1 {..L<.itd SLR V S i�'LJ Lilt. sele v iin he -,Tne,,rt- ef Three Hundred i ft-:r T1-,e�,,LL re,1 Del l -lrs I"TIQLT'�.7 a..- f-�e-�- ---� ems- r� -rrrr� _ ($350,009-00) t- e� fund d t- h r e p l a e-, e� T., e� r, t- f the park '��j —r _ems �Y �ZiLZCCi V as ,...1 t. 1,,. t.. L l l l l 1 1 V to by `. 1 V V at its hundredth (590t_h) residential , r, i t- . West Pointe Dev Agr 2001 -15- �_P I.�t ?I r_,OL_ c- - c -- - - = = - - - WE �• - - -- o- - - -• -� MAIM - - _ -- =- grow ME• Developer agrees that the above - described payments deseribed park land shall be deemed to satisfy the "Quimby" requirement set forth at California Government Code Section 66477 et seq. for the Property. Pr op e rt y . -a14 s � bp�g subsequent s; b,; h i , the S e e f i eTlan area fer a i ef S:79 residential units. Bevelepe_r shall -z ] l s e the a b e re d� i b e-, d i ffip r ems, . e t and the v a a t,.a i i v � �.. ,..a L ,.., v a a � U a✓ v Y �,,, t..l �,,. J �... _� �C City's s andard s ,Lid si a agreement prier te the App r V Y 1 o f t tit first f i r l t a t Tr tip r the first final payee! fnap within the Gpeeifie Plan area. Any dwelling ,, r, i units in T e� e s r, f C -7 n ,�,a any i T�, t- i F,, t- i e-, ,-, l x.1111 1. J ce. Z'�� +� —.LAS Quimby } 14 �l�a + r + L.B r + . rLrin r s L sryest- i e C TT-1 --.eaea ' t- ' e� t-e� t1-, required eenstruetie �! �.aa,.e V ,... `. �. 1 V i a V• 1 1 1 {..L<.itd SLR V S i�'LJ Lilt. sele v iin he -,Tne,,rt- ef Three Hundred i ft-:r T1-,e�,,LL re,1 Del l -lrs I"TIQLT'�.7 a..- f-�e-�- ---� ems- r� -rrrr� _ ($350,009-00) t- e� fund d t- h r e p l a e-, e� T., e� r, t- f the park '��j —r _ems �Y �ZiLZCCi V as ,...1 t. 1,,. t.. L l l l l 1 1 V to by `. 1 V V at its hundredth (590t_h) residential , r, i t- . West Pointe Dev Agr 2001 -15- �_P I.�t ?I r_,OL_ least twe (2) travel lanes and neee4� -y -C . 6.11. Developer shall construct appropriately sized water lines, pumping facilities, and storage facilities for recycled water consistent with the requirements of the City, Waterworks District No. 1 and Calleguas Water District. Said lines shall be installed prior to the final cap being placed on all streets whether the recycled water is available or not. 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, park, and any other public and commonly owned landscaping and recreation areas. 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 the park site and other 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. 6.12. Greenbelts, open space areas, landscaped areas, and trails lying within each portion of the Property (not covered by any other section) shall be dedicated to City in a form approved by the City Attorney, or to one or more homeowners or property owners associations as determined by the City Council at its sole and unfettered discretion, as a condition of recordation of the final subdivision map or parcel map defining the area within which said areas are located. Greenbelts, buffers and open space areas may include wetlands, storm water detention areas, landscaping and decorative planting areas that do not interfere with greenbelt, buffer and open space uses as determined by the City at its sole and unfettered discretion. Such areas not dedicated to City shall include a conservation easement granted to the City in a form acceptable to the City consistent with Civil Code Section 815 et seq. 6.13. Developer agrees to grant the City a conservation easement in a form acceptable to the City consistent with Civil Code Section 815 et seq. for lot of Tract 5187 Planning Areas 12 and 13 —to insure this area remains as public open space and shall, at its sole West Pointe Dev Agr 2001 -16- cost and expense, irrevocably offer to dedicate lot of Tract 5187 to City. In addition to the required irrevocable offer of dedication and granting of a conservation easement described above, Developer shall at its sole cost and expense provide City a cash deposit in the amount of Dollars ($ ) to fund the management, maintenance, and related items of lot to be expended by City at its sole discretion. Payment shall be made prior to occupancy of the one hundred fiftieth (150t") residential unit for the Property. Developer shall make improvements at its sole cost and expense to the trail staging area on lot of Tract 5187. The improvements shall be as determined by the City at its sole discretion and shall include but not be limited to the following: preparation of a site plan, grading, installation of a parking lot with paving material as determined by the City (either asphalt, concrete, or decomposed granite, or similar material), water and electricity services, security lighting, and fencing and gates. Improvements shall be completed prior to the first occupancy of a residential unit for the property and to the satisfaction of the City. No excavation, drilling, extraction, pumping, mining, or similar activity shall be allowed in any portion of the Property zoned Open Space. The limitations and exclusions described in this subsection shall be included in the conservation easement. The conservation easement shall be recorded concurrently with recordation of the first final map for the Property and shall be in a form acceptable to City and consistent with Civil Code Section 815 et seq. 6.14. Developer shall provide fifteen (15), four (4) bedroom and two bath single family detached units with a minimum of 1,200 square feet and a maximum of 1,500 square feet to be sold to buyers who meet the criteria for low income (80 percent or less of median income) and ten (10) , four (4) bedroom and two bath single family detached units with a minimum of 1,200 square feet and a maximum of 1,500 square feet to be sold to buyers who meet the criteria for very low income (50 percent or less of median income). Prior to approval of the first final map for Tentative Tract Map No 5187, Developer shall acquire an approximate two -acre Rest Pointe Dev Agr 2001 -17- parcel within the Moorpark Redevelopment Agency project area on which to construct the 25 referenced units. The parcel must be zoned and have an approved land use designation to allow construction of the referenced 25 units prior to approval of the first final map for Tract Map No. 5187. The initial selling price for the 15 units for low- income buyers shall not exceed $ (low income selling price), which shall be paid to the developer at the time of initial sale. The initial selling price for the 10 units for low - income buyers shall not exceed $ (very low income selling price) , which shall be paid to the developer at the time of initial sale. The difference between the selling price and market value shall be retained by City as a second deed of trust. City shall control the resale of any of the units. Developer shall pay closing costs for each unit not to exceed $5,000.00. Developer shall be responsible for the following: A. Processing of City required entitlements including but not limited to Tentative Tract and Final Map and Residential Planned Development Permit (RPD) . B. Processing of General Plan Amendment, Zone Change, and environmental document (up to MND but no EIR) . C. Pay all City capital improvement and mitigation fees. Quimby fees shall be $3,600 to be increased consistent with CPI beginning three years after Tentative Tract Map approval and increasing annually thereafter. D. Grade the site per approved map, install all utilities, and construct all public and private improvements consistent with City standards typical for such subdivision. The first ten units (6 low, 4 very low) shall be constructed and occupied prior to the 50tII occupancy in Tract 5187, and the next 15 units (9 low, 6 very low) shall be constructed and occupied prior to the occupancy of the 150" unit in Tract 5187. The initial sales price, market value, buyer eligibility, resale restrictions, respective role of City and Developer, and any other item determined West Pointe Dev Agr 2001 - 18 - r necessary by the City shall be set forth in the Affordable Housing Implementation and Resale Restriction Plan, which shall be approved by the City Council in its sole and unfettered discretion prior to recordation of the first final Tract Map for this project. 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 Plan and the Affordable Housing Agreement up to a maximum of Seven Thousand, Five Hundred Dollars ($7,500.00). • = = • = • ONION • • cup 1 • • • • • • • • West Pointe Dev Agr 2001 -19 - 6.15. Developer agrees that the Mitigation Measures included in the City Council certified Final Environmental Impact Report (EIR) and Mitigation Monitoring Program, or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. - 9eveleper further agrees t=hat ai - t a t i ty f ee s reneera but net _pee i f 1 1 r eCTLTCZ a 4- e d in the E T D a-+2Q M"S'~t i, j 3'"T'SRLLnee -'e-f peyrfai fer eaeh residential ZCiZCi Plan. Developer alse— 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 in the Final Environmental Impact Report (EIR) for the Epeei-f e _'1a „Property. 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 anv time at its sole discretion, City may require Developer to purchase equipment, vehicles, or other items, contract and pay for services, or make improvements for which Developer shall receive equivalent credit against future Air Quality Fee payments or refund of previous payments. The Air Quality Fee shall be Three Hundred Sixty Thousand Nine Hundred Fifteen Dollars ($360,915.00) to be paid prior to the issuance of a building permit for the first residential unit in Tract 5187. Commencing on January 1, 2005, and annually thereafter the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been West Pointe Dev Agr 2001 -20- - - -o -c �- �- o .- - s.- -. -- -c. - - -- -. - - -o -- .- .- 6.15. Developer agrees that the Mitigation Measures included in the City Council certified Final Environmental Impact Report (EIR) and Mitigation Monitoring Program, or subsequent environmental clearance document approved by the Council, set forth the mitigation requirements for air quality impacts. - 9eveleper further agrees t=hat ai - t a t i ty f ee s reneera but net _pee i f 1 1 r eCTLTCZ a 4- e d in the E T D a-+2Q M"S'~t i, j 3'"T'SRLLnee -'e-f peyrfai fer eaeh residential ZCiZCi Plan. Developer alse— 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 in the Final Environmental Impact Report (EIR) for the Epeei-f e _'1a „Property. 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 anv time at its sole discretion, City may require Developer to purchase equipment, vehicles, or other items, contract and pay for services, or make improvements for which Developer shall receive equivalent credit against future Air Quality Fee payments or refund of previous payments. The Air Quality Fee shall be Three Hundred Sixty Thousand Nine Hundred Fifteen Dollars ($360,915.00) to be paid prior to the issuance of a building permit for the first residential unit in Tract 5187. Commencing on January 1, 2005, and annually thereafter the Air Quality Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been West Pointe Dev Agr 2001 -20- 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 September over the prior month of September. 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. Fer residential tl al pre jPE?t^_, the Air Quality Fee shall m the s fne f e r all dwelling -- -units -app re Residential - d -e'Pc - - � -` R, Er) qtr- rfaLtTSITCS TIZQ -ST be E?aleulated- -bid the nom-,.".,,,, Tity Develepment Depart me prier For institutional uses, the Air Quality Fee shall be calculated by the Community Development Department prior to the first occupancy approval for each institutional use. j�� l e , l -, i- e ,a , 3- the e t � e d -i n 0 h ii e,3��r- �— zr-�-- Tl�I;FT— .-, paragrraph using - -the City's appreved edeI -. the issuance of the first residential building permit and grading permit for the Property, Developer shall submit and gain approval from City Council of an Implementation Plan. The Implementation Plan shall address the requirements for phasing and construction responsibilities of Developer and any successors including sureties for performance for all grading, construction of storm drains and utilities, private and public streets, and other private and public improvements on or offsite required by Tract 5187, RPD 99 -2 and this Agreement. The approval of the Implementation Plan shall be at the Citv Council's sole discretion. West Pointe Dev Agr 2001 -21- 6.17. Prior to the approval of the first final map for Tract 51871 S-b,f -tfi a 1 e f an -► p p l i + f e ti- a V.a �.. 1 V 11 L V L any ' app ,tiers -, Developer shall submit and gain approval from City Council a plan to guarantee the agreements contained in this Section 6. The plan shall address the entities responsible and method and timing of guarantee for each component of Developer's obligations and is subject to City Council approval at its sole discretion. 6.19. 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 - n Gpee f -- Plan Ne-2 on the Property. 6.20. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property West Pointe Dev Agr 2001 _22_ i - _ •_ -_ -_ -__ - _- _ -ft. -- __ -- 6.19. 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 - n Gpee f -- Plan Ne-2 on the Property. 6.20. Developer agrees to cast affirmative ballots for the formation of an assessment district and levying of assessments, for the maintenance of parkway and median landscaping, street lighting and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property West Pointe Dev Agr 2001 _22_ i 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 basins and related drainage facilities, landscaping, access road to water tank site, 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 5187 and RPD 99 -2. 6.21. 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, 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. 6.22. Pri r 4-e aeerel i- i e e f the Preperty, if required by City at its sele diseretien, - r e e-1 land, trails an a ether ameTSL Se s . The ebligatien ef said preperty ssee -iati� s sti;a1 be neJ r e s p e e i f i al l v defined ZZ the Ze'nditia r s o f appreval ef the first tentative ract fer the Prepert 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. West Pointe Dev Agr 2001 -23- 1"00-1 r N-rI t .Prior to approval of the first final map for Tract 5187 or issuance of a grading permit for the Property, whichever occurs first, the Developer shall pay to the City Dollars ($ ) to satisfy the Final EIR Drainage, Sediment Transport, and Flood Control Planning Mitigation Measure 4. This payment may be expended by City in its sole discretion for drainage and flood control purposes. 6.24. Aevelapei= - shall — previde -ter h i-eu -1ar aeees9 G^. re i l -ten eendi t i ,r� f -app re r � fer the first �vuizc..� -.z uo r�- .LZ7S2 -�i lr S tentative +- r e+ er p a r emap-- fer the Preperty.Prior to approval of the first final map for the Property, the Developer shall pay to the City One Hundred Thousand Dollars ($100,000.00) to satisfy the Final EIR Biological and Botanical Resources Mitigation Measures 5., 18., and 19. This payment may be expended by City in its sole discretion for open space acquisition and maintenance and habitat restoration and preservation. 6.26. Develepe- r --shall at its el —ee se r efne r_ Read f rem Les s T n g e l Aventie --1 i V -Te the last traeks. The wall shall be six feet (61) te eight feet in as ffle tired frefn the oi.aF- i n of the Gpi=ing Read sidewalk. - Final design, pla , speeifieat-iens shall be yed by the i Geun G i ` y s e s Ter plan C h e e k and n s pei11 plus r T t y administrative eests.- Developer shall construct "A" West Pointe Dev Agr 2001 -24- Street from "E" Street to the southern boundary of Tract 5187 prior to occupancy of the one hundred sixty -fifth (165 ) residential unit of Tract 5187. In addition, "A" Street shall be extended to the planned east /west connector (formerly SR 118 Bypass Route) and said connector shall be extended to Gabbert Road at the same time as "A" Street is extended to the Tract 5187 boundary. The design, plans and specifications for the above - referenced improvements shall be approved by City at its sole discretion. Developer shall also pay City for its plan check, inspection and administrative costs related to the design and construction of said improvements. Developer shall be eligible for pro rata reimbursements from other developers as determined by City at its sole discretion. Developer shall provide a surety in an amount and form determined by City at its sole discretion obligating Developer for the long -term maintenance of "A" Street and the east /west connector road until two years after the occupancy of the last residential unit in Tract 5187. The obligation shall provide for a 50 -year life for "A" Street. 6.27. Devel- eper —shall : r rc _ e c ab, , offer t e .a e a � - l� related slepe and eenstridetien easements f" _7 t funded street eve entms-e n Les Angeles Avenue; nr7 Read between "C-11 Street and Walnut Ganyen Read needed fer ultifnate build eut ef Spring Read net required te be eenstrueted by Develeper as part — ors .Prior to issuance of the first residential building permit for the Property, the Developer shall pay to the City Dollars ($ ) to satisfy the Final EIR Traffic and Transportation Mitigation Measures 1., 2., S. and 6. and Public Services and Utilities Mitigation Measure 2. This payment may be expended by City in its sole discretion. Developer agrees that no more than ninety -nine (99) residential building permits will be issued for the Property until the intersection of Moorpark Avenue (SR 23) and High Street is widened to provide dedicated through, right -turn and left -turn lanes for both the north and south legs of the intersection, a dedicated right -turn lane for southbound Walnut Canyon Road at Casey Road is constructed, and the timing of all signalized West Pointe Dev Agz 2001 -25- jqj()-I a. -- intersections from Spring Road /Walnut Canyon Road south to Los Angeles Avenue /Moorpark Avenue are synchronized consistent with plans approved by City in its sole discretion subject to Caltrans concurrence. 6.28. Prior to occupancy of the first residential unit in Tract 5187 and RPD 99 -2, Developer shall acquire at its sole cost and expense the property needed to improve and make improvements to the Walnut Canyon frontage of the contiguous property to the North (Peters) and to the South ( ) consistent with the Walnut Canyon Corridor Study. Final design, plans and specifications shall be as approved by the City in its sole discretion subject to Caltrans concurrence . ; ntersee ; e e f Charles Street -„-.,a Germs p 6.30. Developer at its sole cost and expense shall construct the public trail system i dent -f ied in the —Speej f ie Plan across the Walnut Canyon frontage of the Property and across the adjacent parcel to the North to connect to the trail in Tract 4928 and across the adjacent property to the south to connect to a point as determined by the City at its sole discretion, including inspection and City administrative costs. Developer shall also at its sole cost and expense prepare a design, ate-- plans– and specifications for submittal to City. City shall approve design, a-nd plans and specifications at its sole discretion. The required improvements shall also include construction West Pointe Dev Agr 2001 -26- f r _.: of equestrian crossings at or near street intersections as determined necessary by City at its sole discretion. Developer shall at its sole cost and expense provide to City a cash deposit in the amount of One Hundred Fifty Thousand Dollars ($150,000.00) to fund the maintenance of the trail system. Payment shall be made rior to occupancy of the five two hundredth (F-3200t) residential unit. 6.31. Deyele er- 9hall at i t sele eesfi and e pense IT 1 6.32. Prier t-e eeeupaney ef the f i rsi- residential unit in the -P �^� area, e the D e v a 1p e r —sh,1 _ ray —te the C }-t y Hundred Twenty Five Theusand Bellars am. Final , te satisfy - I'TZZSg'RtSeTI IGasur"� and -f _ e rtr_1"'t _sir -at the i3tCrseetie T-vf Les —Angeles AyenitP and Tierra Rejada .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. 7. City Agreements. 7.1. City shall commit the necessary 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. 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, 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 Specific Plan 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 West Pointe Dev Agr 2001 -27- 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. 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. 7.3. If requested in writing by Developer and limited to City's legal authority, City 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 66457 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, and City overhead expenses of fifteen percent (15 %) on all out -of- pocket costs and City staff costs. 7.4. 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 5187 and RPD 99 -2 the Speeifie Plan and appre—d tentative map and contingent on City Engineer and Director of Community Development acceptance of a Performance Bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of the rough grading;- and construction of on -site and off -site improvements. eensistent wi -'H1-, the Gity Geidneil appre=v'E?.d Speeifie Pl- n and Tentative Map. _In the case of failure to comply with the terms and conditions of the early grading agreement, the City Council may by resolution declare the surety forfeited. 7.5. City agrees that whenever possible as determined by west Pointe Dev Agr 2001 ago City in its sole discretion to process concurrently all land use entitlements for the same property so long as said entitlements are deemed complete. 7.6. City agrees that the Park Fee land and imprevefaen-t-s required under subsection 6.9. of this Agreement meets Developer's obligation for park land dedication provisions of state law and City codes. em ept— er dwelling units in emeess 5:70 and any tises whieh shall have te separately meet the 7.7. City agrees, at no cost to City, to cooperate with Developer to allow Developer to receive the maximum amount of tax benefits for the dedication of public open space of lot 7.8. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Speei f - _ Plan Property required herein for the duration such units are required to be maintained as affordable consistent with the provisions of subsection 6.14. 7.9. City agrees to allow for a variation of five feet (51) maximum in the grades as shown on the Grading Plan exhibit of the Speeifie Plan Property subject to approval of the Director of Community Development upon a determination by the Director in his /her sole discretion that the overall design and visual quality of the Speeifie Plan - -- Property would not be significantly affected. U IM 7.11. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map development permit or development agreement with one or more other developers. West Pointe Dev Agr 2001 _29_ - 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 Developers 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 Developers 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. West Pointe Dev Agr 2001 -30- 11. Default Provisions. 11.1. Default by Developer. - Ne-The Developer shall be deemed to have breached this Agreement as a i-esul of a Cie' ether be De rel"eper�.2 , but evelepe ^i- sh �eefRe � in b��i f... Vomit : (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 and the same is not cured within the time set forth in a written notice of violation from City to Developer, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if Developer cannot reasonably cure the breach within the time set forth in the notice, Developer fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.2. Default by City. City shall be deemed in breach of this Agreement if it (-a) materially breaches any of the provisions of the Agreement and the same is not cure within the time set forth in a written notice of violation from Developer to City, which period shall not be less than ten (10) days from the date the notice is deemed received, provided if City cannot reasonably cure the breach within the time set forth in the notice, City fails to commence to cure the breach within such time limit and diligently effect such cure thereafter. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this section of the Agreement, the nature of the alleged breach, and the manner in which the West Pointe Dev Agr 2001 -31- breach may be satisfactorily cured. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. 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 a— Developer shall be injunctive relief and /or specific performance. In addition, and notwithstanding Subsection 11.5, if the breach is of or -7subsection 6.14 6.19 (affordable housing) of this Agreement, City shall have the right to withhold the issuance of building permits to all Developers throughout the Project area: from the date that the notice of violation was given pursuant to subsection 11.2 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. • C C MMMFMVM p - - - - - - - - - - - • - - - - - - - - - - - - C - p - - • C - west Pointe Dev Agr 2001 -32- 000CI 12. Mortgage Protection. At the same time that City gives notice to any Developer of a breach by that Develeper, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15 ) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, a-ny Developer may deliver written notice to City and City may deliver written notice to any 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 west Pointe Dev Agr 2001 -33- - . f I O's j - - -- '�= _ - _ -- c - - a -- �- - - 12. Mortgage Protection. At the same time that City gives notice to any Developer of a breach by that Develeper, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ( "Financier "), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15 ) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, a-ny Developer may deliver written notice to City and City may deliver written notice to any 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 west Pointe Dev Agr 2001 -33- - . f I O's j 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 affeet 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 (feet Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Ordinance No. 59 of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part, as te any De- veleper by mutual consent of City and the affected Developer. Ne amendment shall previde benefits te any Develeper by the J ` - a.. Apprevals e r this Agreeffient. 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, that 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 Hest Pointe Dev Agr 2001 -34- agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement or any provision thereof. 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of twenty (20) years commencing on its operative date or until the close of escrow on the initial sale of the last Affordable Housing Unit, whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Expiration of the term or earlier termination of this Agreement shall not automatically affect any Project Approval or Subsequent Approval that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement contains the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. This Agreement shall not be amended, except as expressly provided herein. West Pointe Dev Agr 2001 -35- 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developers, 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 Developers. City and eaeh 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 West Pointe Dev Agr 2001 -36- U 0 ( ) I of this Agreement shall prevail. Should any provision of the inf rastru Lure -a and ' .,ne}ng Implementation Plan be found to be in conflict with any provision of this Agreement, the provisions of the infrastruetdre and Finaneing 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. 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, West Pointe Homes, Inc., Feantainwee Ageara and City of Moorpark have executed this Development Agreement on the date first above written. WEST POINTE HOMES, INC. James Rasmussen President West Pointe Dev Agr 2001 -37- CITY OF MOORPARK Patrick Hunter Mayor r EXHIBIT "B" RECORDING REQUESTED BY: City Clerk, City of Moorpark WHEN RECORDED MAIL TO: City Clerk, City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 COVENANT RUNNING WITH THE LAND THIS COVENANT is made this day of by and between West Pointe Homes, Inc., a Nevada Corporation Age+_ira, Ga i fernia General Partnership, -("Developer") and the City of Moorpark, a municipal corporation ( "City "). WHEREAS, Developer is the owner of certain real property in the City of Moorpark, County of Ventura, legally described as Lot of Tract No. ( "the Developer's Property "); and WHEREAS, City is the owner of certain City of Moorpark, County of Ventura, as Property "); and real property in the legally described ( "the City's WHEREAS, Developer and City are parties to that certain Development Agreement recorded in the office of the County Recorder of the County of Ventura as Instrument No. ( "the Development Agreement "); and WHEREAS, pursuant to the Development Agreement, Developer agreed to restrict the use of the Developer Property to certain uses and to transfer all other development rights to the City Property and to record a document to that effect as a condition of approval of the final map for Tract No. ; NOW, THEREFORE, in consideration of the mutual promises of the parties to this Covenant, each to the other as covenanter and West Pointe Dev Agr 2001 -38- covenantee, and expressly for the benefit of, and to bind, their successors in interest, the parties agree as follow: 1. The Developer Property shall be used for the following purposes only: public school facilities, kindergarten through 12th grade 2. All uses not specified in Paragraph 1 hereof are hereby deemed transferred from the Developer Property to the City Property for the benefit of the City Property. 3. From time to time, and at any time, City may substitute any other property owned by City on the date of the substitution for the City Property ( "the Substitute Property ") without the consent of Developer by the recordation of an amendment to this Covenant in the office of the County Recorder of the County of Ventura. The amendment shall describe the Substitute Property and shall provide that, commencing on the date of recordation of the amendment, all uses not specified in Paragraph 2 hereof shall be deemed transferred from the City Property to the Substitute Property for the benefit of the Substitute Property. 4. All of the covenants, restrictions, and limitations set 'r forth herein shall run with the Developer Property and the City Property and shall benefit and bind all persons, whether natural or legal, having or acquiring any right, title, or interest in any portion of the Developer Property or the City Property. Each grantee of a conveyance or purchaser under a contract of sale or similar instrument that covers any right, title, or interest in or to any portion of the Developer Property or the City Property, by accepting a deed or a contract of sale or similar instrument, accepts the conveyance or sale subject to, and agrees to be bound and benefitted by, all of the covenants, restrictions and limitations set forth herein. 5. This Covenant may be enforced by proceedings at law or in equity against any person who violates or attempts to violate an covenant, restriction or limitation hereof. The prevailing party shall be entitled to recover such attorneys' fees and court costs as it reasonably incurs in such a proceeding. 6. In the event any provision of this Covenant is found to be invalid or unenforceable in any proceeding at law or in equity, such finding shall not affect the other provisions of this Covenant, which shall remain in full force and effect. west Pointe Dev Agr 2001 -39- e4101 ` +. IN WITNESS WHEREOF, West Pointe Homes, Inc., and City of Moorpark have executed this Covenant on the date first above written. WEST POINTE HOMES, INC. James Rasmussen V Q r7Ant- West Pointe Dev Agr 2001 -40- CITY OF MOORPARK Patrick Hunter Mayor EXHIBIT "C" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: West Pointe Homes, Inc. 960 Westlake Blvd., Suite 204 Westlake Village, CA 91361 Attn: James Rasmussen, President c'