HomeMy WebLinkAboutAG RPTS 2003 1202 PC REGResolution No. PC- 2003 -452
PLANNING COMMISSION
REGULAR MEETING AGENDA
TUESDAY - December 2, 2003
7:00 P.M.
Moorpark Community Center
1. CALL TO ORDER:
2. PLEDGE OF ALLEGIANCE:
3. ROLL CALL:
799 Moorpark Avenue
4. PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS:
5. REORDERING OF, AND ADDITIONS TO THE AGENDA:
6. CONSENT CALENDAR:
A. Amended Regular Meeting Minutes of October 21, 2003.
B. Regular Meeting Minutes of November 18, 2003.
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 Discussion
item. Speakers who wish to address the Commission concerning a Public Hearing
or Discussion item must do so during the Public Hearing or 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 Discussion items prior to the beginning of the first item
of the 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 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 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 -6233.
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Planning Commission Agenda
December 2, 2003
Page No. 2
7. PUBLIC COMMENTS:
8. PUBLIC HEARINGS:
(next Resolution No. 2003 -452)
A. Consider Proposed Development Aareement with SunCal
Companies (Moorpark 150 LLC) pertaining to General
Plan Amendment 1998 -01, Zone Change 1998 -01, Vesting
Tentative Tract Map No. 5130 and Residential Planned
Development No. 1998 -02.
Staff Recommendation: 1) Open the public hearing,
accept public testimony and close the public hearing;
and 2) Adopt Resolution No. PC -2003- recommending
to the City Council approval of a Development
Agreement with Moorpark 150, LLC.
B. Consider General Plan Amendment No. 2001 -05, Zone
Change No. 2001 -02, and Specific Plan No. 2001 -01, for
1,650 Housing Units on 3,586.3 Acres Located Generally
North of Moorpark College and State Route 118 on Land
Immediately Outside City of Moorpark Municipal
Boundaries. Applicant: North Park Village, LP (APN:
500 -0- 120 -065; 500 -0 -170 -135; 500 -0- 180 -125, -1350, -
145), -155, -165, -175, -1850, -195, -205, -215, -225, -
235, -245, -255; 500 -0- 281 -165, -175; 500 -0- 292 -135, -
145, -195, -215, -225; 615 -0 -110 -205, -215; 615- 0 -150-
185) (Continued from November 18, 2003 Meeting)
Staff Recommendation: Continue to accept public
comments and continue the agenda item with the public
hearing open to the December 16, 2003 Planning
Commission meeting.
9. DISCUSSION ITEMS:
10. ANNOUNCEMENTS AND FUTURE AGENDA ITEMS:
A. December 16, 2003 Planning Commission Meeting:
- General Plan Amendment No. 2001 -05, Zone Change No.
2001 -02, and Specific Plan No. 2001 -01 (North Park)
Planning Commission Agenda
December 2, 2003
Page No. 3
11. ADJOURNMENT:
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In compliance with the Americans with Disabilities Act, if you need special
assistance to review an agenda or participate in this meeting, including
auxiliary aids or services, please contact the Community Development
Department at (805) 517 -6233. Upon request, the agenda can be made available
in appropriate alternative formats to persons with a disability. Any request
for disability- related modification or accommodation should be made at least
48 hours prior to the scheduled meeting to assist the City staff in assuring
reasonable arrangements can be made to provide accessibility to the meeting
(28 CFR 35.102- 35.104; ADA Title II).
ITEM: 6.A.
Planning Commission, City of Moorpark, California
I Amended Minutes of October 21, 2003
Pacte 1
1 I
The
Regular meeting of the Planning Commission was held on
2
October 21, 2003, in the City Council Chambers; Moorpark Civic
3
Center; 799 Moorpark Avenue; Moorpark, California; 93021.
4
1.
CALL TO ORDER:
5
Chair Landis called the meeting to order at 7:02 p.m.
6
2.
PLEDGE OF ALLEGIANCE:
7
David Bobardt led the Pledge of Allegiance.
8
3.
ROLL CALL:
9
Commissioners Lauletta, Peskay and Pozza, Vice Chair
10
DiCecco and Chair Landis were present.
11
Staff attending the meeting included Barry Hogan, Community
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Development Director; Walter Brown, City Engineer; David
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Bobardt, Planning Manager; Laura Stringer, Senior
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Management Analyst; and Gail Rice, Administrative
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Secretary.
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4.
PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS:
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None.
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5.
REORDERING OF, AND ADDITIONS TO THE AGENDA:
19
None.
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6.
CONSENT CALENDAR:
21
A. Regular Meeting Minutes of October 21, 2003.
22
MOTION: Commissioner Peskay moved and Vice Chair DiCecco
23
seconded a motion that the Planning Commission Regular
24
Meeting Minutes of October 7, 2003, be approved. (Unanimous
25
5:0 voice vote.)
000001
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Planning Commission, City of Moorpark, California
I Amended Minutes of October 21, 2003
Paae 2
1 7. PUBLIC COMMENTS:
2 None.
3 8. PUBLIC HEARINGS:
4 (next Resolution No. 2002 -452)
5 A. Consider General Plan Amendment No. 2001 -05, Zone
6 Change No. 2001 -02, and Specific Plan No. 2001 -01, for
7 1,650 Housing Units on 3,586.3 Acres Located Generally
8 North of Moorpark College and State Route 118 on Land
9 Immediately Outside City of Moorpark Municipal
10 Boundaries. Applicant: North Park Village, LP (APN:
11 500 -0- 120 -065; 500 -0- 170 -135; 500 -0- 180 -125, -1351 -
12 1451 -155, -165, -175, -1851 -195, -205, -215, -225, -
13 235, -245, -255; 500 -0 -281 -165, -175; 500 -0- 292 -135, -
14 145, -195, -215, -225; 615 -0 -110 -205, -215; 615- 0 -150-
15 185)
16 Staff Recommendation: Continue to accept public
17 comments and continue the agenda item with the public
18 hearing open to the November 4, 2003 Planning
19 Commission meeting.
20 David Bobardt provided the staff presentation.
21 Disclosure by the Commission took place.
22 • Chair Landis stated that he had met with the
23 applicant.
24 • Vice Chair DiCecco stated that he had met with
25 the applicant.
26 Chair Landis opened the public hearing.
27 Kim Kilkenny, applicant, spoke on the project plans
28 (voter assurance and the land plan); preservation
29 (nature preserve, parks, open space, trail system);
30 recreation lake (uses and water); school site and day
31 care facility; fire services and the helipad; college
32 observatory; neighborhood center; and options. He
33 also spoke on issues raised by the public with regard
34 to traffic, grading, impact to hillsides, Fox Canyon
000002
Planning Commission, City of Moorpark, California
Amended Minutes of October 21, 2003
Paue 3
1
Outcrop, visual and fiscal impacts, other plan
2
options, proposed options and the process.
3
The Commission questioned applicant on taxes;
4
maintenance of the natural preserve; no circulation on
5
the west side of the property; previous developers and
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their issues; commercial center; lot sizes; mixed
7
uses; access, circumference and maintenance of the
8
lake; school site and size; dirt road to be used for
9
construction; the park increasing traffic; and the
10
interchange timeframe.
11
Diane Caro, resident, indicated that she was not
12
thoroughly convinced yet and spoke on water
13
opportunities, the site for the fire station, Fox
14
Canyon Outcropping, entry homes, some homes around the
15
Fox Canyon Outcropping and park maintenance.
16
Michael Garner, resident, met with applicants and
17
commented that he looks forward to the chance of being
18
able to vote on this project.
19
Dorothy Ventimiglio, resident, not in support of the
20
proposal, stated that traffic, water, resources,
21
pollution, toxic substances, San Joaquin Valley Fever
22
and the Unocal property were still major concerns.
23
Cheri Risley Bohnert, resident, spoke in support of
24
the proposal, stating that she liked the second and
25
third story usage of the commercial buildings for
26
residential, access above the college, would like to
27
see the west side used more to avoid impact and wanted
28
to see the larger lots and homes.
29
Judith Roller, resident, stated that she was not in
30
support of the proposal because traffic is still a
31
major issue and there is no extra lane for an
32
emergency vehicle to get through, if necessary.
33
Lisa Leal, resident, spoke in favor of the proposal,
34
stating that without the project there would be no
35
access going through that area. She is a firm
36
supporter of SOAR and still believes in protecting
37
land but stated that this developer presented a more
000003
Planning Commission, City of Moorpark, California
Amended Minutes of October 21, 2003
Pacie 4
1
viable project than the previous project and this
2
project includes more beauty, revenue and jobs.
3 I
Janet Murphy, resident, in Suppei=t ef the picepesal,
4
commented that the developer needs to bring the
5
project to the voters and recommended voting in
6
November and not in the summer months. She commented
7
on the more sensitive habitat on the east side of this
8
project; the City and applicant scheduling on -site
9
field trips for the public and stated traffic problems
10
will be in this area with or without North Park
11
Village, which are issues the City should resolve now.
12
Martyn Keats, business owner, spoke on the "small
13
town" lifestyle in Moorpark and that he supported
14
SOAR. He stated that the sports park mentioned in the
15
draft EIR has to be built by the citizens and not the
16
developer.
17
Two (2) written statement cards were submitted. Their
18
statements will be included in the record.
19
20
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23
24
25
26
27
The Commission questioned staff about the peak hours
used for the traffic study and public tours of the
site.
Mr. Kilkenny stated that citizens may call their
office at 805 - 378 -1150 and arrange a tour of the
proposed site.
Mr. Bobardt commented on
scheduled for the November
Commission meetings.
the presentation process
and December 2003 Planning
28 Mr. Hogan clarified that the City Council will decide
29 on the voting date for this project and that it was
30 not a decision the Planning Commission could make.
31 Mr. Hogan commented that staff appreciated the
32 comments received from the community, but that staff
33 was still analyzing information on the North Park
34 project, which would be included in a final
35 recommendation.
OOCy-004
Planning Commission, City of Moorpark, California
Amended Minutes of October 21, 2003
Page 5
1 MOTION: Commissioner Peskay moved and Vice Chair
2 DiCecco seconded a motion to approve staff
3 recommendation.
4 (Motion carried with a unanimous 5:0 voice vote.)
5 9. DISCUSSION ITEMS:
6 None.
7 10. ANNOUNCEMENTS AND FUTURE AGENDA ITEMS:
8 A. October 21, 2003 Planning Commission Meeting:
9 a. General Plan Amendment No. 2001 -05; Zone Change
10 No. 2001 -02 and Specific Plan No. 2001 -01
11 (Continued from October 7, 2003, public hearing
12 open)
13 Barry Hogan discussed future agenda items.
14 11. ADJOURNMENT:
15 MOTION: Commissioner Pozza moved and Commissioner Lauletta
16 seconded a motion to adjourn the meeting.
17 (Motion carried with a unanimous 5:0 voice vote.)
18 The meeting was adjourned at 9:24 p.m.
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ATTEST:
Barry K. Hogan
Community Development Director
Kipp A. Landis, Chair
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ITEM: 6.B.
Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Pacte 1
The Regular meeting of the Planning Commission was held on
November 18, 2003, in the City Council Chambers; Moorpark Civic
Center; 799 Moorpark Avenue; Moorpark, California; 93021.
1. CALL TO ORDER:
Chair Landis called the meeting to order at 7:08 p.m.
2. PLEDGE OF ALLEGIANCE:
Commissioner Peskay led the Pledge of Allegiance.
3. ROLL CALL:
Commissioners Lauletta, Peskay and Pozza, Vice Chair
DiCecco and Chair Landis were present.
Staff attending the meeting included Barry Hogan, Community
Development Director; Walter Brown, City Engineer; David
Bobardt, Planning Manager; and Gail Rice, Administrative
Secretary.
4. PROCLAMATIONS, COMMENDATIONS AND SPECIAL PRESENTATIONS:
Mr. Hogan stated that the Superintendent of Moorpark
Unified School District will be in attendance at the
December 2, 2003, Regular Planning Commission meeting, for
questions.
5. REORDERING OF, AND ADDITIONS TO THE AGENDA:
None.
6. CONSENT CALENDAR:
A. Regular Meeting Minutes of November 4, 2003.
MOTION: Commissioner Pozza moved and Commissioner Peskay
seconded a motion that the Planning Commission Regular
Meeting Minutes of November 4, 20031, be approved.
(Unanimous 5:0 voice vote.)
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Paae 2
1 7. PUBLIC COMMENTS:
2 None.
3 8. PUBLIC HEARINGS:
4 (next Resolution No. 2002 -452)
5 A. Consider General Plan Amendment No. 2001 -05, Zone
6 Change No. 2001 -02, and Specific Plan No. 2001 -01, for
7 1,650 Housing Units on 3,586.3 Acres Located Generally
8 North of Moorpark College and State Route 118 on Land
9 Immediately Outside City of Moorpark Municipal
10 Boundaries. Applicant: North Park Village, LP (APN:
11 500 -0 -120 -065; 500 -0- 170 -135; 500 -0 -180 -125, -135), -
12 145, -155, -165, -175, -185, -195, -2051, -215, -225, -
13 235, -245, -255; 500 -0 -281 -165, -175; 500 -0- 292 -135, -
14 145, -195, -215, -225; 615 -0- 110 -205, -215; 615- 0 -150-
15 185) (Continued from November 4, 2003 Meeting)
16 Staff Recommendation: Continue to accept public
17 comments and continue the agenda item with the public
18 hearing open to the December 2, 2003 Planning
19 Commission meeting.
20 David Bobardt provided the staff presentation and
21 commented that the Draft EIR, which contains 400 pages
22 of responses to comments, may be ready for the
23 Planning Commission by the December 2, 2003 meeting,
24 but may not be addressed at that meeting.
25 Disclosure by the Commission took place.
26
• Commissioner Peskay stated that he
had met
with
27
the applicant last week.
28
• Commissioner Lauletta stated that he
had met
with
29
the applicant last week.
30
• Vice Chair DiCecco stated that he
had met
with
31
the applicant last week.
32
The Commission requested from staff a
matrix
for
33
tracking all the project modifications
discussed
at
34
previous Planning Commission meetings.
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Pacte 3
1
Kim Kilkenny, applicant, provided staff and the
2
Planning Commission with a Specific Plan Matrix. He
3
then spoke on the sixteen issues contained in the
4
matrix that were raised at previous Planning
5
Commission meetings. Mr. Kilkenny also provided the
6
Commission with a copy of his Power Point
7
presentation.
8
Doug Nickles, applicant's representative and expert in
9
urban forestry and fire service. He spoke on the
10
results of the recent Simi fire and its effect on the
11
North Park project area and addressed proposals within
12
the project that would keep this project from being
13
burned in a future wild fire. He commented on the
14
vegetation in the area, creating a self- defensible
15
community, the layout, low -fuel landscaping, fire -safe
16
structures, secondary access (ingress and egress) and
17
evacuation, water as a preventative measure, the youth
18
sports park for evacuation and command post, and fire
19
flow.
20
The Commission questioned Mr. Nickles on modifications
21
proposed in the areas surrounding the structures to
22
prevent the fire from reaching the individual
23
structures.
24
Mr. Nickles commented that the project is far enough
25
from natural vegetation and that the structures would
26
be constructed with fire safety in mind.
27
Harlan Glenn, Dudek Associates, applicant's
28
representative and expert on creating lakes, lake
29
management and design. He commented on the size of the
30
lots, erosion around lake edge, clay -based linings
31
versus soil, methodology of creating lakes and safety.
32
He stated that applicant has requested a "state of the
33
art" lake for the project. He gave the Commission a
34
handout which had twenty -four lake examples and
35
resolutions for specific problems that may arise with
36
various lakes.
37
The Commission questioned Mr. Glenn on clay -lined
38
lakes versus soil cement, retarding weeds, chemicals
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Paae 4
1
used, nutrients, water levels, boat size limitation,
2
lake circumference and planned open area.
3
Mr. Kilkenny commented on financing used for the
4
facilities and Community Facility Districts (CFD), the
5
interchange spacing, school fees and grade levels, and
6
standard property taxes.
7
The Commission questioned Mr. Kilkenny on timeframes
8
for the school.
9
He stated the proposed start date is in the third year
10
of construction and then continued his review of the
11
matrix.
12
The Commission questioned Mr. Kilkenny on the natural
13
preserve land area, sports park lighting issues,
14
effect of relocating lots away from the outcrop,
15
school attendance (residents versus enrollment
16
figures), proposed pre- school parcel, and relationship
17
of the park and school site.
18
Rick Katz, resident, spoke in support of the project.
19
He commented that he was drawn to the lake, open
20
space, open preserve, and stated that the applicant is
21
listening to the public's concerns and is addressing
22
them.
23
Suzanne Wilson, resident, commented that she still is
24
not convinced about the project. She stated that
25
current development will add five to six thousand
26
residents causing major traffic problems in addition
27
to the current problems. She questioned if the school
28
could handle the projects growth and concluded that
29
the project would take away quality of life for the
30
existing residents.
31
Martyn Keats, resident, read two (2) newspaper
32
articles that addressed traffic congestion, air
33
quality problems and natural preserves. He requested
34
that the decision process be extended beyond the
35
holiday season.
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Paae 5
Kathleen Finn, resident, commented on traffic, how
terrible it currently is, and that during the
firestorm this was the only exit for residents. She
also commented that she would like to see the
Commission accept public comments on this project
through December, until 2004. She stated that the
cons outweigh the pros on the project.
Janet Murphy, resident, stated that she was not in
favor of the project and that the minutes from the
October 21, 2003 meeting stated that she was in favor.
She commented that turnout for the November 4, 2003
meeting, was low due to the fires and asked the
Commission not to close this public hearing on
December 16th due to the holidays because it would not
allow enough time for public responses.
Tim Saivar, resident, commented that, on the surface,
the lake sounded like a good idea but there was no
inlet or outlet. He stated that if El Nino struck
again, there would be flooding. He stated that the
sports park next to existing residences was not a good
idea. He also commented that the traffic issue was not
being addressed.
Four (4) written statement cards were submitted, two
(2) in opposition and two (2) in favor. Their
statements will be included in the record.
Mr. Hogan clarified that the Planning Commission would
make a recommendation to the City Council on the
project, not a decision. He added that the City
Council would take the final action, to send the
project to the vote of the residents.
Vice Chair DiCecco commented on land planning, land
use, making the project more pedestrian- friendly,
mixed use, small lots closer to the lake and then
expanding out, proximity in relation to the
interchange, ingress and egress, spacing, the outcrop,
more narrow streets, right -of -way and medians, gated
communities and isolation of neighbors, architecture,
procession towards a community center, and quality of
life.
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Page 6
1 Chair Landis commented on number of units on the
2 project, lake and flooding, circulation, lake access,
3 roads and bike paths, and traffic mitigation for the
4 Campus Hills people.
5 Commissioner Peskay commented on preserving habitats,
6 lake management, overall fiscal and economic impact,
7 fire safety construction, earthquake and grading
8 safety. He expressed appreciation of staff for
9 scheduling meetings to address issues before it is too
10 late and complimented the Moorpark residents on their
11 comments and questions.
12 Commissioner Lauletta commented on the Planning
13 Commission's role and achieving community balance. He
14 discussed the natural reserve property, traffic
15 mitigation, school mitigation, wildlife issues and
16 mixed uses.
17 Commissioner Pozza recapped the process and discussed
18 possible extension of the comment period past the
19 holidays. He commented on major concerns with traffic
20 and schools, and addressing mitigation issues.
21 Chair Landis questioned lake drainage and potential
22 flooding issues.
23 MOTION: Commissioner Peskay moved and Vice Chair
24 DiCecco seconded a motion to approve staff
25 recommendation.
26 (Motion carried with a unanimous 5:0 voice vote.)
27 9. DISCUSSION ITEMS:
28 None.
29 10. ANNOUNCEMENTS AND FUTURE AGENDA ITEMS:
30 December 2, 2003 Planning Commission Meeting:
31 - General Plan Amendment No. 2001 -05, Zone Change No.
32 2001 -02, and Specific Plan No. 2001 -01 (North Park)
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Planning Commission, City of Moorpark, California
Minutes of November 18, 2003
Paae 7
1 - Residential Planned Development No. 1998 -02; General
2 Plan Amendment No. 1998 -01; Tentative Tract No.
3 5130; Zone Change No. 1998 -01 (SunCal)
4 Barry Hogan discussed future agenda items.
5 CONSENSUS: By consensus, the Commission concurred with
6 staff's recommendation to place RPD No. 1998 -02 (SunCal)
7 first on the agenda for the December 2, 2003 meeting and
8 then place the continued hearing for GPA No. 2001 -05 (North
9 Park) as the second item.
10 11. ADJOURNMENT:
11 MOTION: Commissioner Lauletta moved and Commissioner Pozza
12 seconded a motion to adjourn the meeting.
13 (Motion carried with a unanimous 5:0 voice vote.)
14 The meeting was adjourned at 9:18 p.m.
15
16
17 ATTEST:
18
19 Barry K. Hogan
20 Community Development Director
Kipp A. Landis, Chair
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TO:
FROM:
DATE:
ITEM: 8. A.
MOORPARK PLANNING COMMISSION
AGENDA REPORT
Honorable Planning Commission
Barry K. Hogan, Community Development Director
By: Laura Stringer, Senior Management Analys
November 17, 2003 (PC Meeting of 12/02/03)
SUBJECT: Consider Proposed Development Agreement with SunCal
Companies (Moorpark 150 LLC) pertaining to General Plan
Amendment No. 1998 -01, Zone Change No. 1998 -01, Vesting
Tentative Tract Map No. 5130 and Residential Planned
Development No. 1998 -02
BACKGROUND /DISCUSSION
On August 19, 2003, the Planning Commission recommended to the City
Council approval of General Plan Amendment No. 1998 -01, Zone Change
No. 1998 -01, Vesting Tentative Tract Map No. 5130 and Residential
Planned Development No. 1998 -02 for 110 single- family houses,
located east of Walnut Canyon Road, north of Wicks Road, on the
application of Moorpark 150, a Limited Liability Corporation. The
project is commonly known as the SunCal development. The City
Council considered the project on November 19, 2003, and continued
the matter to the meeting of December 17, 2003.
At the November 19, 2003 meeting, the City Council also considered
a draft Development Agreement for the project. Councilmembers
Harper and Mikos, as the appointed Ad Hoc Committee, had worked
with staff to negotiate this draft Development Agreement with the
project applicant. A copy of the November 19, 2003, City Council
Agenda Report, including a copy of the draft Development Agreement,
is attached. The City Council concurred with the Ad Hoc Committee
and staff's recommendation in the report and have referred the
draft Development Agreement to the Planning Commission for
recommendation and set the City Council public hearing for December
17, 2003.
000013
Honorable Planning Commission
December 2, 2003
Page No. 2
ENVIRONMENTAL DETERMINATION
Staff has determined that the Mitigated Negative Declaration
prepared for the General Plan Amendment, Zone Change, Vesting
Tentative Tract Map and Residential Planned Development Permit is
sufficient environmental documentation for the Development
Agreement. No further environmental review is necessary.
STAFF RECOMMENDATIONS
1. Open the public hearing, accept public testimony and close the
public hearing.
2. Adopt Resolution No. PC -2003- recommending to the City
Council approval of a Development Agreement with Moorpark 150,
LLC.
Attachments:
1. November 19, 2003, City Council Agenda Report (with draft
Development Agreement).
2. Draft Resolution recommending approval to the City Council.
\ \mor_pri_sery \City Share \Community Development \ADMIN \AGMTS \D A \1998 -03 SunCal \Agenda Reports \PC
031202 da.doc
000014
MOORPARK CITY COUNCIL
AGENDA REPORT
TO: The Honorable City Council
FROM: Steven Kueny, City Manager
DATE: November 12, 2003 (CC Meeting of November 19, 2003)
SUBJECT: Proposed Development Agreement with SunCal pertaining
to Vesting Tentative Tract Map No. 5130
DISCUSSION:
Councilmembers Harper and Mikos, as the appointed Ad Hoc
Committee, worked with staff to negotiate a Development Agreement
with the developer of the referenced project. While the project
is generally known as SunCal, the owner of the property and the
.party to the Development Agreement is Moorpark 150, which is a
Limited Liability Corporation (LLC). The Development Agreement
generally contains the same points as prior agreements for
similar projects.
Items unique to this project and included in the agreement are
the means of providing affordable housing, improvement of a
portion of the North Hills parkway, and improvement of a portion
of Walnut Canyon Road (SR 23). With the exception of affordable
housing, the staff report for November 19, 2003, City Council
public hearing for the project (GPA 98 -1, Zone Change 98 -1, VTTM
5130, and RPD 98 -2) provides the background and analyses on
specific aspects, some of which are contained in the proposed
Development Agreement.
The percentage of affordable housing units is about eleven
percent (11 %) because a portion of the project site (all or a
portion of 18 lots) is within the Moorpark Redevelopment Agency
project area. In the past, ten percent (10 %) has been the
standard for projects outside of the project area and no less
than fifteen percent (15 %) if the project is within the project
area.
PC ATTACHMENT 1 000015
City Council Agenda Report for 11/19/2003
Re: Proposed Development Agreement with SunCal
Page 2 of 2
The proposal for affordable housing (Section 6.11) includes
twelve (12) single family, detached units (7 for low income and 5
for very low income persons) with at least six (6) of them to be
within the redevelopment project area. (As defined, it can
include certain specified duplex units.)
Section 7.6 of the proposed agreement provides for consideration
for formation of a Community Facilities District. The City at
its sole discretion can decide whether such a District is
actually formed. This same provision was most recently included
in the Development Agreement for Specific Plan No. 2
(Morrison /Pardee) .
Consistent with the City's process and state law, this proposed
Development Agreement must be referred to the Planning
Commission. If directed by the City Council, this would occur at
a public hearing on December 9, 2003, with the Council public
hearing scheduled for December 17, 2003.
The Ad Hoc Committee and staff recommend that this matter be
referred to the Planning Commission for a public hearing on
December 9, 2003, and that the City Council public hearing be set
for December 17, 2003.
STAFF RECOMMENDATION:
Refer the proposed Development Agreement to the Planning
Commission and set the City Council public hearing for December
17, 2003.
SK: db
Attachment: Proposed SunCal Development Agreement
S: \City Manager \Everyone \ccagenda \SunCa1 Dev Agr Agenda Rpt 1119 2003.doc
0oo016
Recording Requested By
And When Recorded Return to:
CITY CLERK
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
EXEMPT FROM RECORDER'S FEES
Pursuant to Government Code
§ 6103
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
MOORPARK 150, LLC
000017
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE §65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and
entered into on , 2004, by and between the CITY OF
MOORPARK, a municipal corporation, (referred to hereinafter as
"City ") and MOORPARK 150, LLC, a Limited Liability Corporation, the
owner of real property within the City of Moorpark generally
referred to as Vesting Tentative Tract Map 5130 (referred to
hereinafter individually as "Developer "). City and Developer are
referred to hereinafter individually as "Party" and collectively as
"Parties." In consideration of the mutual covenants and agreements
contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the
following facts and for the following purposes, each of which
is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code section 65864 et se q. and
Moorpark Municipal Code chapter 15.40, City is
authorized to enter into a binding contractual
agreement with any person having a legal or equitable
interest in real property within its boundaries for the
development of such property in order to establish
certainty in the development process.
1.2. Prior to approval of this Agreement, but after the
approval of the Mitigated Negative Declaration (MND),
Mitigation Measures, and Mitigation Monitoring and
Reporting Program ( "the MMRP ") for the Project
Approvals as defined in subsection 1.3 of this
Agreement, the City Council of City ( "the City
Council ") approved General Plan Amendment No. 98 -01
("GPA 98 -111), for approximately 77 acres of land within
the City ( "the Property "), as more specifically
described in Exhibit "A" attached hereto and
incorporated herein, and changed the zoning of the
Property pursuant to Zone Change No. 98 -01 ("ZC 98 -111).
1.3. GPA 98 -1,
ZC 98 -1, Vesting
Tentative Tract
Map 5130
(Tract 5130) and Residential
Planned Development
Permit
No. 98 -2
(RPD 98 -2) [collectively "the
Project
Approvals
"; individually "a
Project Approval "]
provide
for the
development of
the Property
and the
SunCal Dev Agr -Draft 1110 2003.doc —2
000018
construction of certain off -site improvements in
connection therewith ( "the Project").
1.4. By this Agreement, City desires to obtain the binding
agreement of Developer to develop the Property in
accordance with the Project Approvals and this
Agreement. In consideration thereof, City agrees to
limit the future exercise of certain of its
governmental and proprietary powers to the extent
specified in this Agreement.
1.5. By this Agreement, Developer desires to obtain the
binding agreement of City to permit the development of
the Property in accordance with the Project Approvals
and this Agreement. Developer anticipates developing
the Property over a minimum of three (3) years. In
consideration thereof, Developer agrees to waive its
rights to legally challenge the limitations and
conditions imposed upon the development of the Property
pursuant to the Project Approvals and this Agreement
and to provide the public benefits and improvements
specified in this Agreement.
1.6. City and Developer acknowledge and agree that the
consideration that is to be exchanged pursuant to this
Agreement is fair, just and reasonable and that this
Agreement is consistent with the General Plan of City,
as amended by GPA 98 -1.
1.7. On December 9, 2003, the Planning Commission of City
commenced a duly noticed public hearing on this
Agreement, and at the conclusion of the hearing
recommended approval of the Agreement.
1.8. On , the City Council commenced a duly
noticed public hearing on this Agreement, and at the
conclusion of the hearing on
the Agreement by Ordinance
Ordinance ").
No.
( "the
approved
Enabling
2. Property Subject To This Agreement. All of the Property shall
be subject to this Agreement. The Property may also be
referred to hereinafter as "the site" or "the Project ".
3. Binding Effect. The burdens of this Agreement are binding
upon, and the benefits of the Agreement inure to, each Party
and each successive successor in interest thereto and
constitute covenants that run with the Property. Whenever the
SunCal Dev Agr -Draft 1110 2003.doc
-3-
000019
4.
terms "City" and "Developer" are used herein, such terms shall
include every successive successor in interest thereto, except
that the term "Developer" shall not include the purchaser or
transferee of any lot within the Project that has been fully
developed in accordance with the Project Approvals and this
Agreement.
3.1. Constructive Notice and Acceptance. Every person who
acquires any right, title or interest in or to any
portion of the Property in which a Developer has a
legal interest is, and shall be, conclusively deemed to
have consented and agreed to be bound by this
Agreement, whether or not any reference to the
Agreement is contained in the instrument by which such
person acquired such right, title or interest.
3.2. Release Upon Transfer. Upon the sale or transfer of
any of Developer's interest in any portion of the
Property, that Developer shall be released from its
obligations with respect to the portion so sold or
transferred subsequent to the operative date of the
sale or transfer, provided that the Developer (i) was
not in breach of this Agreement at the time of the sale
or transfer and (ii) prior to the sale or transfer,
delivered to City a written assumption agreement, duly
executed by the purchaser or transferee and notarized
by a notary public, whereby the purchaser or transferee
expressly assumes the obligations of Developer under
this Agreement with respect to the sold or transferred
portion of the Property. Failure to provide a written
assumption agreement hereunder shall not negate, modify
or otherwise affect the liability of the purchaser or
transferee pursuant to this Agreement. Nothing
contained herein shall be deemed to grant to City
discretion to approve or deny any such sale or
transfer, except as otherwise expressly provided in
this Agreement.
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
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
SunCal Dev Agr -Draft 1110 2003.doc
-4-
000020
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
dedications of land for public
applicable to the Property are set
Approvals and this Agreement.
5. Vesting of Development Rights.
purposes that are
forth in the Project
5.1. Timing of Development. In Pardee Construction Co. v.
City of Camarillo, 37 Cal.3d 465 (1984), the California
Supreme Court held that the failure of the parties
therein to provide for the timing or rate of
development resulted in a later- adopted initiative
restricting the rate of development to prevail against
the parties' agreement. City and Developer intend to
avoid the result in Pardee by acknowledging and
providing that Developer shall have the right, without
obligation, to develop the Property in such order and
at such rate and times as Developer deems appropriate
within the exercise of its subjective business
judgment.
In furtherance of the Parties intent, as set forth in
this section, no future amendment of any existing City
ordinance or resolution, or future adoption of any
ordinance, resolution or other action, that purports to
limit the rate or timing of development over time or
alter the sequencing of development phases, whether
adopted or imposed by the City Council or through the
initiative or referendum process, shall apply to the
Property provided the Property is developed in
accordance with the Project Approvals and this
Agreement. Nothing in this section shall be construed
SunCal Dev Agr -Draft 1110 2003.doc
-5-
000021
to limit City's right to insure that Developer timely
provides all infrastructure required by the Project
Approvals, Subsequent Approvals, and this Agreement.
5.2. Amendment of Project Approvals. No amendment of any of
the Project Approvals, whether adopted or approved by
the City Council or through the initiative or
referendum process, shall apply to any portion of the
Property, unless the Developer has agreed in writing to
the amendment.
5.3. Issuance of Subsequent Approvals. Applications for
land use approvals, entitlements and permits, including
without limitation subdivision maps (e.g. tentative,
vesting tentative, parcel, vesting parcel, and final
maps), subdivision improvement agreements and other
agreements relating to the Project, lot line
adjustments, preliminary and final planned development
permits, use permits, design review approvals (e.g.
site plans, architectural plans and landscaping plans),
encroachment permits, and sewer and water connections
that are necessary to or desirable for the development
of the Project (collectively "the Subsequent
Approvals "; individually "a Subsequent Approval ") shall
be consistent with the Project Approvals and this
Agreement. For purposes of this Agreement, Subsequent
Approvals do not include building permits.
Subsequent Approvals shall be governed by the Project
Approvals and by the applicable provisions of the
Moorpark General Plan, the Moorpark Municipal Code and
other City ordinances, resolutions, rules, regulations,
policies, standards and requirements as most recently
adopted or approved by the City Council or through the
initiative or referendum process and in effect at the
time that the application for the Subsequent Approval
is deemed complete by City (collectively "City Laws "),
except City Laws that:
(a) change any permitted or conditionally permitted
uses of the Property from what is allowed by the
Project Approvals;
(b) limit
Project, or
reduction in
improvements
Approvals.
SunCal Dev Agr -Draft 1110 2003.doc
or reduce the density or intensity of the
any part thereof, or otherwise require any
the number of proposed buildings or other
from what is allowed by the Project
000022
(c) limit or control the rate, timing, phasing or
sequencing of the approval, development or construction
of all or any part of the Project in any manner,
provided that all infrastructure required by the
Project Approvals to serve the portion of the Property
covered by the Subsequent Approval is in place or is
scheduled to be in place prior to completion of
construction;
(d) are not uniformly applied on a City -wide basis to
all substantially similar types of development projects
or to all properties with similar land use
designations;
(e) control residential rents;
(f) prohibit or regulate development on slopes with
grades greater than 20 percent, including without
limitation Moorpark Municipal Code Chapter 17.38 or any
successor thereto, within the Property; or
(g) modify the land use from what is permitted by the
City's General Plan Land Use Element at the operative
date of this Agreement or that prohibits or restricts
the establishment or expansion of urban services
including but not limited to community sewer systems to
the Project.
5.4. Term of Subsequent Approvals. The term of any tentative
map for the Property, or any portion thereof, shall
expire ten (10) years after its approval or conditional
approval or upon the expiration or earlier termination
of this Agreement, whichever occurs first,
notwithstanding the provisions of Government Code
Section 66452.6(a) or the fact that the final map may
be filed in phases. Developer hereby waives any right
that it may have under the Subdivision Map Act,
Government Code section 66410 et seq., or any successor
thereto, to apply for an extension of the time at which
the tentative map expires pursuant to this subsection.
No portion of the Property for which a final map or
parcel map has been recorded shall be reverted to
acreage at the initiative of City during the term of
this Agreement.
The term of any Subsequent Approval, except a tentative
map or subdivision improvement or other agreements
SunCal Dev Agr -Draft 1110 2003.doc -7-
000023
relating to the Project, shall be one year; provided
that the term may be extended by the decision maker for
two (2) additional one (1) year periods upon
application of the Developer holding the Subsequent
Approval filed with City's Department of Community
Development prior to the expiration of that Approval.
Each such Subsequent Approval shall be deemed
inaugurated, and no extension shall be necessary, if a
building permit was issued and the foundation received
final inspection by City's Building Inspector prior to
the expiration of that Approval.
It is understood by City and Developer that certain
Subsequent Approvals may not remain valid for the term
of this Agreement. Accordingly, throughout the term of
this Agreement, any Developer shall have the right, at
its election, to apply for a new permit to replace a
permit that has expired or is about to expire.
5.5. Modification Of Approvals. Throughout the term of this
Agreement, Developer shall have the right, at its
election and without risk to any right that is vested
in it pursuant to this section, to apply to City for
modifications to Project Approvals and Subsequent
Approvals. The approval or conditional approval of any
such modification shall not require an amendment to
this Agreement, provided that, in addition to any other
findings that may be required in order to approve or
conditionally approve the modification, a finding is
made that the modification is consistent with this
Agreement.
5.6. Issuance of Building Permits. No building permit,
final inspection or certificate of occupancy will be
unreasonably withheld from Developer if all
infrastructure required by the Project Approvals,
Subsequent Approvals, and this Agreement to serve the
portion of the Property covered by the building permit
is in place or is scheduled to be in place prior to
completion of construction and all of the other
relevant provisions of the Project Approvals,
Subsequent Approvals and this Agreement have been
satisfied. Consistent with Subsection 5.1 of this
Agreement, in no event shall building permits be
allocated on any annual numerical basis or on any
arbitrary allocation basis.
SunCal Dev Agr -Draft 1110 2003.doc _ 8
000024
5.7. Moratorium on Development. Nothing in this Agreement
shall prevent City, whether by the City Council or
through the initiative or referendum process, from
adopting or imposing a moratorium on the processing and
issuance of Subsequent Approvals and building permits
and on the finalizing of building permits by means of a
final inspection or certificate of occupancy, provided
that the moratorium is adopted or imposed (i) on a
City -wide basis to all substantially similar types of
development projects and properties with similar land
use designations and (ii) as a result of a utility
shortage or a reasonably foreseeable utility shortage,
including without limitation a shortage of water, sewer
treatment capacity, electricity or natural gas.
6. Developer Agreements.
6.1. Developer shall comply with (i) this Agreement, (ii)
the Project Approvals, (iii) all Subsequent Approvals
for which it was the applicant or a successor in
interest to the applicant and (iv) the MMRP of the MND
and any subsequent or supplemental environmental
actions.
6.2. All lands and interests in land dedicated to City shall
be free and clear of liens and encumbrances other than
easements or restrictions that do not preclude or
interfere with use of the land or interest for its
intended purpose, as reasonably determined by City.
6.3. As a condition of the issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City a
development fee as described herein (the "Development
Fee "). The Development Fee may be expended by City in
its sole and unfettered discretion. On the operative
date of this Agreement, the amount of the Development
Fee shall be Eight Thousand Six Hundred Thirty -Five
Dollars ($8,635.00) per residential unit and Thirty -
Eight Thousand, Eight Hundred Fifty -Eight Dollars
($38,858.00) per gross acre of institutional land on
which the use is located. The fee shall be adjusted
annually commencing one (1) year after the first
residential building permit is issued within Tract 5130
by any increase in the Consumer Price Index (CPI) until
all fees have been paid. The CPI increase shall be
determined by using the information provided by the
U.S. Department of Labor, Bureau of Labor Statistics,
SunCal Dev Agr -Draft 1110 2003.doc
000025
for all urban consumers within the Los
Angeles /Anaheim /Riverside metropolitan area during the
prior year. The calculation shall be made using the
month which is four (4) months prior to the month in
which the first residential building permit is issued
within Tract 5130 (e.g., if the permit issuance occurs
in October, then the month of June is used to calculate
the increase). In the event there is a decrease in the
referenced Index for any annual indexing, the
Development Fee shall remain at its then current amount
until such time as the next subsequent annual indexing
which results in an increase.
6.4. As a condition of the issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City a
traffic mitigation fee as described herein ( "Citywide
Traffic Fee "). The Citywide Traffic Fee may be
expended by City in its sole and unfettered discretion.
On the operative date of this Agreement, the amount of
the Citywide Traffic Fee shall be Four Thousand, Six
Hundred Sixty -Four Dollars ($4,664.00) per residential
unit, and Twenty Thousand, Nine Hundred Ninety -Eight
Dollars ($20,998.00) per acre of institutional land on
which the institutional use is located. Commencing on
January 1, 2005, and annually thereafter, both
categories of the Citywide Traffic Fee shall be
increased to reflect the change in the State Highway
Bid Price Index for the twelve (12) month period that
is reported in the latest issue of the Engineering News
Record that is available on December 31 of the
preceding year ( "annual indexing "). In the event there
is a decrease in the referenced Index for any annual
indexing, the Citywide Traffic Fee shall remain at its
then current amount until such time as the next
subsequent annual indexing which results in an
increase.
6.5. As a condition of issuance of a building permit for
each residential or institutional use within the
boundaries of the Property, Developer shall pay City a
community services fee as described herein (Community
Services Fee) . The Community Services Fee may be
expended by City in its sole and unfettered discretion.
The amount of the Community Services Fee shall be Two
Thousand, Two Hundred Thirty -Three Dollars ($2,233.00)
per residential unit, and Seven Thousand Seventy
Dollars ($7,070.00) per gross acre of institutional
SunCal Dev Agr -Draft 1110 2003.doc -10
_
000026
land on which the institutional use is located.
Commencing on January 1, 2007, and annually thereafter,
the Community Services Fee shall be adjusted by any
increase in the Consumer Price Index (CPI) until all
Community Services Fees have been paid. The CPI
increase shall be determined by using the information
provided by the U.S. Department of Labor, Bureau of
Labor Statistics, for all urban consumers within the
Los Angeles /Anaheim /Riverside metropolitan area during
the prior year. The calculation shall be made using
the month of August over the prior month of August. In
the event there is a decrease in the CPI for any annual
indexing, the Community Services Fee shall remain at
its then current amount until such time as the next
subsequent annual indexing which results in an
increase.
6.6. On the operative date of this Agreement, Developer
shall pay all outstanding City processing costs related
to preparation of this Agreement, Project Approvals,
and MND.
6.7. Prior to the issuance of the building permit for each
residential dwelling unit within the Property,
Developer shall pay a fee in lieu of the dedication of
parkland and related improvements (Park Fee). On the
operative date of this Agreement, the amount of the
Park Fee shall be Ten Thousand, Eight Hundred Dollars
($10,800.00) for each residential dwelling unit and
Fifty Cents ($.50) per square foot of each building
used for institutional purposes within the Property.
The fee shall be adjusted annually commencing one (1)
year after the first residential building permit is
issued within Tract 5130 by any increase in the
Consumer Price Index (CPI) until all fees have been
paid. The CPI increase shall be determined by using
the information provided by the U.S. Department of
Labor, Bureau of Labor Statistics, for all urban
consumers within the Los Angeles /Anaheim /Riverside
metropolitan area during the prior year. The
calculation shall be made using the month which is four
(4) months prior to the month in which the first
residential building permit is issued within Tract 5130
(e.g., if the permit issuance occurs in October, then
the month of June is used to calculate the increase).
In the event there is a decrease in the referenced
Index for any annual indexing, the Park Fee shall
remain at its then current amount until such time as
SunCal Dev Agr -Draft 1110 2003.doc — 11 —
00002,/
the next subsequent annual indexing which results in an
increase.
Developer agrees that the above - described payments
shall be deemed to satisfy the parkland dedication
requirement set forth at California Government Code
Section 66477 et se g. for the Property.
6.8. Provided that prior to recordation of the first final
map for Tract 5130 or March 31, 2005, whichever is
later, Ventura County Waterworks District No. 1 or any
successor entity confirms that it has sufficient
recycled water to serve the public and community owned
landscaped areas within Tract 5130, then Developer
shall construct appropriately sized water lines,
pumping facilities, and storage facilities for recycled
water consistent with the requirements of the City,
Waterworks District No. 1 and Calleguas Water District.
Said lines shall be installed prior to the final cap
being placed on all streets. Developer shall provide
service including payment of any connection and meter
charges and shall use recycled water for medians and
parkways for all public streets, and any other public
and commonly owned landscaping and recreation areas.
The amount of recycled water needed and areas to be
irrigated by recycled water shall be determined by City
at its sole discretion. The recycled water lines)
shall be installed for each City approved phase of
development and the recycled water shall be in use
prior to the first occupancy approval for each City
approved phase of development if such recycled water is
available within one -half mile of the Property.
Developer shall install dual water meters and services
for all locations determined necessary by City at its
sole discretion to insure that both potable and
recycled water are available where restroom and
drinking fountains are planned.
6.9. Greenbelts, paseos, buffers, 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, paseos, buffers and open space
SunCal Dev Agr -Draft 1110 2003.doc — 12 —
000028
areas may include wetlands, storm water detention and
debris basins, landscaping and decorative planting
areas, sidewalks and trails that do not interfere with
greenbelt, buffer and open space uses as determined by
the City Council 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 se q.
No extraction of subsurface mineral resources, grading,
excavation, drilling, pumping, mining, or similar
activity shall be allowed in any portion of Lots A, B,
C, D, F1, G, H, K, K1 and N. The limitations and
exclusions described in this subsection shall be
included in the conservation easements. Lots A, B, C,
D, F1 and N may include grading for the purpose of
establishing and maintaining landscaping as part of a
fuel modification zone as determined by the Director of
Community Development and Ventura County Fire
Protection District.
Lot A is excepted from the limits described above for
purposes of maintaining any detention or debris basins
including any related service roads. Lot F1 is
excepted from the limits described above in the event
Lot F1 is required to provide primary or secondary
access to the Project as determined by the City at its
sole and unfettered discretion.
6.10 Prior to recordation of the first final map for the
Property, the Developer shall pay to City One Hundred
Forty Thousand Dollars ($140,000.00) to satisfy its
obligation to upgrade the intersections of Walnut
Canyon Road /Moorpark Avenue (SR 23) and Charles
Street, Casey Road and High Street (conditions of
approval 14, 16, and 17 of Tract 5130) . Effective
January 1, 2005, the $140,000.00 payment referenced
above shall increase by one -half of one percent (.5%)
each month until paid. This payment may be expended
by City in its sole discretion.
6.11. Developer shall provide five (5) four (4) bedroom and
two bath and two (2) three (3) bedroom and two bath
single family detached units with a minimum of 1,200
square feet 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 four (4)
SunCal Dev Agr -Draft 1110 2003.doe -13-
000029
four ( 4 ) bedroom and two ( 2 ) bath, and one (1) three
(3) bedroom and two (2) bath single family detached
units with a minimum of 1,200 square feet 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). All single family detached
units shall include a standard size two -car garage
with roll -up garage door and a minimum driveway length
of eighteen (18) feet measured from the back of
sidewalk, meet minimum setback requirements of the
City RPD zone, include concrete roof tiles, and other
amenities typically found in moderate priced housing
in the City (e.g., air conditioning /central heating,
washer /dryer hookups, garbage disposal, built -in
dishwasher, concrete driveway, automatic garage door
opener). The duplex type units in Tracts 3841, 3070-
2, 3070 -3, 3070 -41 4170, and 5133 are considered to be
single family detached units for the purposes of this
Section 6.11.
Subject to City's sole discretion, this obligation, in
whole or part, may be met by providing attached for
sale units in lieu of single family detached units at
the ratio of one and one -half (1 %) attached for sale
unit for each single family detached unit. In the
event such substitution results in any fraction of a
unit, then the requirement shall be rounded up to the
next higher whole number (e.g. the requirement of 3
single family detached units are met by 4% attached
for-sale units, then 5 attached for sale units are
required) . Each of the substituted units shall be at
the income level of the units for which they are being
substituted.
The attached for sale units shall provide the same
number of bedrooms and bathrooms and contain all of
the same amenities for a single family detached unit
as described above, except the minimum driveway
length.
Prior to acquiring any housing unit to meet the
obligations of this Section 6.11, Developer must first
receive the written approval of City Manager or
his /her authorized representative that the unit meets
the requirements of this Development Agreement and any
applicable Affordable Housing Agreement for Tract
5130.
SunCal Dev Agr -Draft 1110 2003.doc -14 -
000030
All affordable housing units provided under this
Section 6.11 that received a final inspection prior to
January 1, 2004, must conform to all building codes
effective as of the date the unit is proposed to be
acquired to meet the Developer's obligation of this
Section 6.11. Developer shall pay at its sole cost
and expense for a city selected contractor to perform
a home inspection and /or occupancy inspection by the
City Building Official, and Developer at its sole cost
and expense shall make any needed corrections to
conform to inspection reports and current building
codes. At Developer's sole cost and expense, the roof
shall be inspected and if necessary as determined by
City at its sole discretion repaired or replaced by a
city selected licensed roofing contractor and
certified to have no less than a 20 -year life.
Developer at its sole cost and expense shall purchase
a standard home warranty policy for a three -year
period commencing on the date the unit is first sold
to a qualified low or very low income household and
shall include but not be limited to coverage of
heating and air conditioning systems, automatic garage
door opener, and all built -in appliances and include a
deductible /service call amount of no more than One
Hundred Dollars ($100.00) per service request. For
these units, City may approve a composition shingle
roof in lieu of a concrete tile roof if all other
provisions of this Section 6.11 are met. In no event
may a wood shake or shingle roof be approved.
In the event the monthly HOA fees exceed $100.00,
Developer shall deposit $120.00 for each dollar or
portion thereof of the monthly HOA fees that are in
excess of $100.00 into trust to assist with future HOA
fees for each affected unit.
The Initial Purchase Price for the low- income buyers
shall not exceed affordable housing cost, as defined
in Sec. 50052.5(b) (2) of California Health and Safety
Code. For a family of 4, the monthly "affordable
housing cost" would be 30% times 70% of $74,700, the
current median income for a family of 4 in Ventura
County, divided by 12. This monthly amount includes
the components identified in Section 6920 of Title 25
of the California Code of Regulations shown below.
(See Section 50052.5 (c) of the Health and Safety
Code.) The Initial Purchase Price for a low income
SunCal Dev Agr -Draft 1110 2003.doc — 15 —
000031
household of 4 or
be $158,000 under
upon the following
Low Income Buyer
Household of Four
fewer would
current market conditions, based
assumptions:
Item
Detail
Amount
Initial Purchase
Price
$158,000
Down Payment
5% of estimated
market value
$14,000
Loan Amount
Initial Purchase
Price less down
payment
$144,000
Interest Rate
6.0%
Property Tax
1.25% of Initial
Purchase Price
$172 /mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186 /mo.
The Initial Purchase Price for a low - income household
of five or more would be based on the affordable
housing cost for the actual household size. Under
current market conditions, that price would be
$170,000 for a household of five, $185,000 for a
household of six, and $200,000 for a household of
seven.
The assumptions associated with the above purchase
price figures for low income households include a 5%
down payment, based on estimated market value of
$280,000.00, mortgage interest rate of 6 %, no mortgage
insurance, property tax rate of 1.25 %, based on
Initial Purchase Price, homeowners, association dues
of $50 per month, fire insurance of $30 per month,
maintenance costs of $30 per month, and utilities of
$186 per month for a household of 4, assuming a 3
bedroom unit, and utilities of $213 per month for
households of 5, 6 and 7 persons, assuming a 4 bedroom
unit.
The Initial Purchase Price for the very low- income
buyers shall not exceed $98,000, based on the
following assumptions:
SunCal Dev Agr -Draft 1110 2003.doc —16— 0000
Very Low Income Buyer
Household of Four
Item
Detail
Amount
Initial Purchase
Price
$98,000
Down Payment
3% of estimated
market value
$8,400
Loan Amount
Initial Purchase
Price less down
payment
$89,600
Interest Rate
6.0%
Property Tax
1.25% of Initial
Purchase Price
$102 /mo.
HOA
$50 /mo.
Fire Insurance
$30 /mo.
Maintenance
$30 /mo.
Utilities
$186 /mo.
That Initial Purchase Price for a very low- income
household of five or more would be based on the
affordable housing cost for the actual household size.
Under current market conditions, the Initial Purchase
Price would be $105,000 for a household of five,
$117,000 for a household of six, and $128,000 for a
household of seven.
The assumptions associated with the above purchase
price figures for very low income households include a
minimum of 3% down payment, based on estimated market
value of $280,000.00, mortgage interest rate of 6 %, no
mortgage insurance, property tax rate of 1.25 %, based
on Initial Purchase Price, homeowners, association
dues of $50 per month, fire insurance of $30 per
month, maintenance costs of $30 per month, and
utilities of $186 per month for a household of 4,
assuming a 3 bedroom unit, and utilities of $213 per
month for households of 5, 6 and 7 persons, assuming a
4 bedroom unit.
Developer acknowledges that changes in market
conditions may result in changes to the Initial
Purchase Price, down payment amounts, mortgage
interest rates, and other factors for both low income
and very low income buyers. Furthermore, if
"affordable housing cost ", as defined in Section
50052.5 of California Health and Safety Code, should
change in the future, the above guidelines will be
SunCal Dev Agr -Draft 1110 2003.doc —17—
000033
modified. The Affordable Housing Implementation and
Resale Restriction Plan shall address this potential
change.
Affordability covenants shall be recorded against each
property to ensure ongoing affordability to low or
very low income households at time of resale for the
longest feasible time, but not less than 45 years. In
addition, the difference between the Initial Purchase
Price and market value may be retained by and be
recorded in favor of the City as a second deed of
trust and will be further defined in the Affordable
Housing Implementation and Resale Restriction Plan.
City shall control the resale of any of the units.
Developer shall pay closing costs for each unit, not
to exceed $6,000. Beginning March 1, 2006, and on
March 1st for each of fifteen subsequent years, the
maximum $6,000 to be paid for closing costs shall be
increased annually by any percentage increase in the
Consumer Price Index (CPI) for All Urban Consumers for
Los Angeles /Orange /Riverside metropolitan area during
the prior year. The calculation shall be made using
the month of December over the prior month of
December. In the event there is a decrease in the CPI
for any annual indexing, the amount due shall remain
at its then current amount until such time as the next
subsequent annual indexing which results in an
increase.
The Initial Purchase Price, market value, buyer
eligibility, resale restrictions, equity share and
second trust deed provisions, respective role of City
and Developer, the responsibility of providing the
affordable units by each developer in the event of
successors and /or assigns to this Agreement, the final
number of single family detached and single family
attached units that shall be provided to meet
Developer's affordable housing obligation, and any
other items determined necessary by the City shall be
set forth in the Affordable Housing Implementation and
Resale Restriction Plan, which shall be approved by
the City Council in its sole and unfettered discretion
prior to recordation of the first final Tract Map for
this Project. 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
SunCal Dev Agr -Draft 1110 2003.doc —18—
000034
this Agreement. Developer shall pay the City's direct
costs for preparation and review of the Affordable
Housing Implementation and Resale Restriction Plan and
the Affordable Housing Agreement up to a maximum of
Nine Thousand Dollars ($9,000.00).
Three ( 3 ) of the low income units and three ( 3 ) of the
very low income units shall be provided by Developer
and occupied by qualified buyers prior to occupancy of
the 50th residential unit in Tract 5130, and the
remaining four (4) low income units and two (2) very
low income units shall be provided by Developer and
occupied by qualified buyers prior to occupancy of the
90th residential unit in Tract 5130. No less than six
(6) or the equivalent number of substituted attached
for sale units of the required twelve (12) units shall
be located within the boundaries of the Moorpark
Redevelopment Agency project area.
All units shall meet the criteria of all applicable
State laws to qualify as newly affordable to low
income and very low income persons (in the quantity as
specified in this Agreement) to satisfy a portion of
the City's RHNA obligation and if within the Moorpark
Redevelopment Agency project area to satisfy a portion
of the Agency's affordable housing goals. None of the
affordable units required by this Agreement shall
duplicate or substitute for the affordable housing
requirement of any other developer or development
project. All subsequent approvals required of City
under this Section 6.11 shall be made at City's sole
discretion. If any conflict exists between this
Agreement and any Affordable Housing Agreement
required by this Agreement or the conditions of
approval for Tract Map No. 5130 and /or RPD No. 98 -2,
then the Affordable Housing Agreement shall prevail.
6.12. Developer agrees that the Mitigation Measures included
in the City Council approved MND and MMRP, or
subsequent environmental clearance document approved by
the Council, set forth the mitigation requirements for
air quality impacts. Developer agrees to pay to City an
air quality mitigation fee, as described herein (Air
Quality Fee), in satisfaction of the Transportation
Demand Management Fund mitigation requirement for the
Project. The Air Quality Fee may be expended by City
in its sole discretion for reduction of regional air
SunCal Dev Agr -Draft 1110 2003.doc -19-
000035
pollution emissions and to mitigate residual Project
air quality impacts.
At the time the Fee is due, City may at its sole
discretion require Developer to purchase equipment,
vehicles, or other items, contract and pay for
services, or make improvements for which Developer
shall receive equivalent credit against Air Quality Fee
payments or refund of previous payments.
The Air Quality Fee shall be One Thousand, Five Hundred
Eighty -Eight Dollars ($1,588.00) per residential unit
to be paid prior to the issuance of each building
permit for the first residential unit in Tract 5130.
Commencing on March 1, 2007, and annually thereafter
the Air Quality Fee shall be adjusted by any increase
in the Consumer Price Index (CPI) until all fees have
been paid. The CPI increase shall be determined by
using the information provided by the U.S. Department
of Labor, Bureau of Labor Statistics, for all urban
consumers within the Los Angeles /Anaheim /Riverside
metropolitan area during the prior year. The
calculation shall be made using the month of December
over the prior month of December. In the event there is
a decrease in the CPI for any annual indexing, the fee
shall remain at its then current amount until such time
as the next subsequent annual indexing which results in
an increase.
For institutional uses, the Air Quality Fee shall be
calculated by the Community Development Department
prior to the first occupancy approval for each
institutional use.
6.13. Developer hereby waives any right that it may have
under California Government Code Section 65915 et.
seq., or any successor thereto, or any other provision
of Federal, State, or City laws or regulations for
application or use of any density bonus that would
increase the number of dwelling units approved to be
constructed on the Property.
6.14. Developer agrees to cast affirmative ballots for the
formation of one or more assessment districts and
levying of assessments, for the maintenance of parkway
and median landscaping, street lighting, including but
not limited to all water and electricity costs, and if
requested by the City Council, parks for the provision
SunCal Dev Agr -Draft 1110 2003.doc —20—
060036
of special benefits conferred by same upon properties
within the Project. Developer further agrees to form
one or more property owner associations and to obligate
said associations to provide for maintenance of parkway
and median landscaping, street lighting, and if
requested by the City Council, parks in the event the
aforementioned assessment district is dissolved or
altered in any way or assessments are reduced or
limited in any way by a ballot election of property
owners, or if the assessment district is invalidated by
court action. Prior to recordation of the first final
map for the Property, if required by City at its sole
discretion, Developer shall also form one or more
property owner associations to assume ownership and
maintenance of open space land, trails, storm water
detention and /or debris basins and related drainage
facilities, landscaping, and other amenities, and to
comply with the National Pollutant Discharge
Elimination System (NPDES) requirements of the Project.
The obligation of said property owner associations
shall be more specifically defined in the conditions of
approval of Tract 5130 and RPD 98 -2.
6.15. In addition to fees specifically mentioned in this
Agreement, Developer agrees to pay all City capital
improvement, development, and processing fees at the
rate and amount in effect at the time the fee is
required to be paid. Said fees include but are not
limited to Library Facilities Fees, Police Facilities
Fees, Fire Facilities Fees, drainage, entitlement
processing fees, and plan check and permit fees for
buildings and public improvements. Developer further
agrees that unless specifically exempted by this
Agreement, it is subject to all fees imposed by City at
the operative date of this Agreement and such future
fees imposed as determined by City in its sole
discretion so long as said fee is imposed on similarly
situated properties.
6.16. Developer shall pay the Los Angeles Avenue Area of
Contribution (AOC) fee for each residential lot and
institutional use prior to the issuance of a building
permit for each lot or use. The AOC fee shall be the
dollar amount in effect at the time of issuance of the
building permit for each residential lot and
institutional use.
SunCal Dev Agr -Draft 1110 2003.doc -21-
00(�,00
37
6.17. Prior to approval of the first final map for the
Property, the Developer shall pay to the City Seventy
Thousand Dollars ($70,000.00) to satisfy the MND and
MMRP Mitigation Measures 2., 5., and 11. as contained
in Initial Study Exhibit 1. This payment may be
expended by City in its sole discretion for open space
acquisition and maintenance and habitat restoration
and preservation.
6.18. All public and private streets required to be
constructed by Developer for this Project shall
provide for a 50 -year life for such streets.
6.19. Prior to occupancy of the first residential unit in
Tract 5130 and RPD 98 -2, Developer shall acquire at
its sole cost and expense the property needed to
improve and make improvements to the Walnut Canyon
Road and be consistent with the conditions of approval
for Tract 5130.
6.20. Developer agrees that any fees and payments pursuant
to this Agreement shall be made without reservation,
and Developer expressly waives the right to payment of
any such fees under protest pursuant to California
Government Code Section 66020 and statutes amendatory
or supplementary thereto.
6.21. Developer agrees to comply with Section 15.40.150 of
the Moorpark Municipal Code and any provision
amendatory or supplementary thereto for annual review
of this Agreement and further agrees that the annual
review shall include evaluation of its compliance with
the approved MND and MMRP.
6.22 Developer shall install a six foot (61) to eight foot
(8') high decorative masonry wall and landscaping
adjacent to said wall at or within ten (10) feet
directly north of the north right of way of the
proposed North Hills Parkway (i.e. at or within 10
feet north of the south property line of Waterworks
District No. 1 parcel APN 500 - 027 -013). The location,
design, and installation of the decorative masonry
wall, landscaping, and related irrigation system shall
be to the satisfaction of the Director of Community
Development and City Engineer and installed prior to
the first residential occupancy of Tract 5130 and RPD
98 -2.
SunCal Dev Agr -Draft 1110 2003.doc —22—
(� Q
000038
7. City Agreements.
7.1. City shall commit reasonable time and resources of City
staff to work with Developer on the expedited and
parallel processing of applications for Subsequent
Approvals for the Project area and shall use overtime
and independent contractors whenever possible.
Developer shall assume any risk related to, and shall
pay the additional costs incurred by City for, the
expedited and parallel processing.
7.2. If requested in writing by Developer and limited to
City's legal authority, City shall proceed to acquire,
at Developer's sole cost and expense, easements or fee
title to land in which Developer does not have title or
interest in order to allow construction of public
improvements required of Developer including any land
which is outside City's legal boundaries. The process
shall generally follow Government Code Section 66462.5
et se . 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.
7.3. The City Manager is authorized to sign an early grading
agreement on behalf of City to allow rough grading of
the Project prior to City Council approval of a final
subdivision map. Said early grading agreement shall be
consistent with the conditions of approval for Tract
5130 and RPD 98 -1 and contingent on City Engineer and
Director of Community Development acceptance of a
Performance Bond in a form and amount satisfactory to
them to guarantee implementation of the erosion control
plan and completion of the rough grading and
construction of on -site and off -site improvements. In
the case of failure to comply with the terms and
conditions of the early grading agreement, the City
Council may by resolution declare the surety forfeited.
7.4. City agrees that whenever possible as determined by
City in its sole discretion to process concurrently all
land use entitlements for the same property so long as
said entitlements are deemed complete.
SunCal Dev Ayr -Draft 1110 2003.doc —23—
000019
7.5. City agrees that the Park Fee required under subsection
6.7. of this Agreement meets Developer's obligation for
park land dedication provisions of state law and City
codes.
7.6. City agrees that upon receipt of a landowners' petition
by Developer and Developer's payment of a fee, as
prescribed in California Government Code Section 53318,
City shall commence proceedings to form a Mello -Roos
Community Facilities District ( "District ") and to incur
bonded indebtedness to finance all or portions of the
public facilities, infrastructure and services that are
required by the Project and that may be provided
pursuant to the Mello -Roos Community Facilities Act of
1982 (the "Act "); provided, however, the City Council,
in its sole and unfettered discretion, may abandon
establishment of the District upon the conclusion of
the public hearing required by California Government
Code Section 53321 and /or deem it unnecessary to incur
bonded indebtedness at the conclusion of the hearing
required by California government Code Section 53345.
In the event that a District is formed, the special tax
levied against any residential lot or residence thereon
shall afford the buyer the option to prepay the special
tax in full prior to the close of escrow on the initial
sale of the developed lot by the builder of the
residence.
7.7. The City agrees to appoint an affordable housing staff
person to oversee the implementation of the affordable
housing requirements for the Property required herein
for the duration such units are required to be
maintained as affordable consistent with the
provisions of subsection 6.11.
7.8. City agrees to allow for a variation of five feet (51)
maximum in the grades as shown on the Grading Plan
exhibit of Tract 5130 subject to approval of the
Director of Community Development upon a determination
by the Director in his /her sole discretion subject to
review by the City Council that the overall design and
visual quality of the Property would not be
significantly affected.
7.9. City shall facilitate the reimbursement to Developer
of any costs incurred by Developer that may be subject
to partial reimbursement from other developers as a
condition of approval of a tract map development
SunCal Dev Agr -Draft 1110 2003.doc -24-
000040
permit or development agreement with one or more other
developers.
8. Supersession of Agreement by Change of Law. In the event that
any state or federal law or regulation enacted after the date
the Enabling Ordinance was adopted by the City Council
prevents or precludes' compliance with any provision of the
Agreement, such provision shall be deemed modified or
suspended to comply with such state or federal law or
regulation, as reasonably determined necessary by City.
9. Demonstration of Good Faith Compliance. In order to ascertain
compliance by Developer with the provisions of this Agreement,
the Agreement shall be reviewed annually in accordance with
Moorpark Municipal Code Chapter 15.40. of City or any
successor thereof then in effect. The failure of City to
conduct any such annual review shall not, in any manner,
constitute a breach of this Agreement by City, diminish,
impede, or abrogate the obligations of Developer hereunder or
render this Agreement invalid or void. At the same time as
the referenced annual review, City shall also review
Developer's compliance with the MMRP.
10. Authorized Delays. Performance by any Party of its
obligations hereunder, other than payment of fees, shall be
excused during any period of "Excusable Delay ", as hereinafter
defined, provided that the Party claiming the delay gives
notice of the delay to the other Parties as soon as possible
after the same has been ascertained. For purposes hereof,
Excusable Delay shall mean delay that directly affects, and is
beyond the reasonable control of, the Party claiming the
delay, including without limitation: (a) act of God; (b) civil
commotion; (c) riot; (d) strike, picketing or other labor
dispute; (e) shortage of materials or supplies; (e) damage to
work in progress by reason of fire, flood, earthquake or other
casualty; (f) failure, delay or inability of City to provide
adequate levels of public services, facilities or
infrastructure to the Property including, by way of example
only, the lack of water to serve any portion of the Property
due to drought; (g) delay caused by a restriction imposed or
mandated by a governmental entity other than City; or (h)
litigation brought by a third party attacking the validity of
this Agreement, a Project Approval, a Subsequent Approval or
any other action necessary for development of the Property.
SunCal Dev Agr -Draft 1110 2003.doc —25—
00004JL
11. Default Provisions.
11.1. Default by Developer. The Developer shall be deemed to
have breached this Agreement if it:
(a) practices, or attempts to practice, any fraud or
deceit upon City; or willfully violates any order,
ruling or decision of any regulatory or judicial
body having jurisdiction over the Property or the
Project, provided that Developer may contest any
such order, ruling or decision by appropriate
proceedings conducted in good faith, in which
event no breach of this Agreement shall be deemed
to have occurred unless and until there is a final
adjudication adverse to Developer; or
(b) fails to make any payments required under this
Agreement; or
(c) materially breaches any of the provisions of the
Agreement and the same is not cured within the
time set forth in a written notice of violation
from City to Developer, which period of time shall
not be less than ten (10) days from the date that
the notice is deemed received, provided if
Developer cannot reasonably cure the breach within
the time set forth in the notice, Developer fails
to commence to cure the breach within such time
limit and diligently effect such cure thereafter.
11.2. Default by City. City shall be deemed in breach of
this Agreement if it materially breaches any of the
provisions of the Agreement and the same is not cured
within the time set forth in a written notice of
violation from Developer to City, which period shall
not be less than ten (10) days from the date the notice
is deemed received, provided if City cannot reasonably
cure the breach within the time set forth in the
notice, City fails to commence to cure the breach
within such time limit and diligently effect such cure
thereafter.
11.3. Content of Notice of Violation. Every notice of
violation shall state with specificity that it is given
pursuant to this section of the Agreement, the nature
of the alleged breach, and the manner in which the
breach may be satisfactorily cured. The notice shall
be deemed given on the date that it is personally
SunCal Dev Agr -Draft 1110 2003.doc -26-
0000 1-
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 Developer
shall be injunctive relief and /or specific performance.
In addition, if the breach is of subsections 6.10,
6.11, 6.12, 6.14, 6.15, 6.16, 6.17, 6.18, 6.19, 6.20,
or subsection 6.21 of this Agreement, City shall have
the right to withhold the issuance of building permits
to Developer throughout the Project from the date that
the notice of violation was given pursuant to
subsection 11.2 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.
12. Mortgage Protection. At the same time that City gives notice
to Developer of a breach, City shall send a copy of the notice
to each holder of record of any deed of trust on the portion
of the Property in which Developer has a legal interest
( "Financier "), provided that the Financier has given prior
written notice of its name and mailing address to City and the
notice makes specific reference to this section. The copies
shall be sent by United States mail, registered or certified,
postage prepaid, return receipt requested, and shall be deemed
received upon the third (3rd) day after deposit.
Each Financier that has given prior notice to City pursuant to
this section shall have the right, at its option and insofar
SunCal Dev Agr -Draft 1110 2003.doc —2 7 —
000043
as the rights of City are concerned, to cure any such breach
within fifteen (15 ) days after the receipt of the notice from
City. If such breach cannot be cured within such time period,
the Financier shall have such additional period as may be
reasonably required to cure the same, provided that the
Financier gives notice to City of its intention to cure and
commences the cure within fifteen (15) days after receipt of
the notice from City and thereafter diligently prosecutes the
same to completion. City shall not commence legal action
against Developer by reason of Developer's breach without
allowing the Financier to cure the same as specified herein.
Notwithstanding any cure by Financier, this Agreement shall be
binding and effective against the Financier and every owner of
the Property, or part thereof, whose title thereto is acquired
by foreclosure, trustee sale or otherwise.
13. Estoppel Certificate. At any time and from time to time,
Developer may deliver written notice to City and City may
deliver written notice to Developer requesting that such Party
certify in writing that, to the knowledge of the certifying
Party, (i) this Agreement is in full force and effect and a
binding obligation of the Parties, (ii) this Agreement has not
been amended, or if amended, the identity of each amendment,
and (iii) the requesting Party is not in breach of this
Agreement, or if in breach, a description of each such breach.
The arty receiving such a request shall execute and return
the certificate within thirty (30) days following receipt of
the notice. City acknowledges that a certificate may be
relied upon by successors in interest to the Developer who
requested the certificate and by holders of record of deeds of
trust on the portion of the Property in which that Developer
has a legal interest.
14. Administration of Agreement. Any decision by City staff
concerning the interpretation and administration of this
Agreement and development of the Property in accordance
herewith may be appealed by the Developer to the City Council,
provided that any such appeal shall be filed with the City
Clerk of City within ten (10) days after the affected
Developer receives notice of the staff decision. The City
Council shall render its decision to affirm, reverse or modify
the staff decision within thirty (30) days after the appeal
was filed. The Developer shall not seek judicial review of
any staff decision without first having exhausted its remedies
pursuant to this section.
15. Amendment or Termination by Mutual Consent. In accordance
with the provisions of Ordinance No. 59 of City or any
SunCal Dev Agr -Draft 1110 2003.doc _ 28
oo0044
successor thereof then in effect, this Agreement may be
amended or terminated, in whole or in part, by mutual consent
of City and the affected Developer.
15.1 Exemption for Amendments of Project Approvals. No
amendment to a Project Approval shall require an
amendment to this Agreement and any such amendment
shall be deemed to be incorporated into this Agreement
at the time that the amendment becomes effective,
provided that the amendment is consistent with this
Agreement.
16. Indemnification. Developer shall indemnify, defend with
counsel approved by City, and hold harmless City and its
officers, employees and agents from and against any and all
losses, liabilities, fines, penalties, costs, claims, demands,
damages, injuries or judgments arising out of, or resulting in
any way from, Developer's performance pursuant to this
Agreement.
Developer shall indemnify, defend with counsel approved by
City, and hold harmless City and its officers, employees and
agents from and against any action or proceeding to attack,
review, set aside, void or annul this Agreement, or any
provision thereof, or any Project Approval or Subsequent
Approval or modifications thereto, or any other subsequent
entitlements for the project and including any related
environmental approval.
17. Time of Essence. Time is of the essence for each provision of
this Agreement of which time is an element.
18. Operative Date. This Agreement shall become operative on the
date the Enabling Ordinance becomes effective pursuant to
Government Code Section 36937.
19. Term. This Agreement shall remain in full force and effect
for a term of twenty (20) years commencing on its operative
date or until the close of escrow on the initial sale of the
last Affordable Housing Unit, whichever occurs last, unless
said term is amended or the Agreement is sooner terminated as
otherwise provided herein.
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.
SunCal Dev Agr -Draft 1110 2003.doc —29—
000045
Upon expiration of the term or earlier termination of this
Agreement, the Parties shall execute any document reasonably
requested by any Party to remove this Agreement from the
public records as to the Property, and every portion thereof,
to the extent permitted by applicable laws.
20. Notices. All notices and other communications given pursuant
to this Agreement shall be in writing and shall be deemed
received when personally delivered or upon the third (3rd) day
after deposit in the United States mail, registered or
certified, postage prepaid, return receipt requested, to the
Parties at the addresses set forth in Exhibit "B" attached
hereto and incorporated herein.
Any Party may, from time to time, by written notice to the
other, designate a different address which shall be
substituted for the one above specified.
21. Entire Agreement. This Agreement and those exhibits and
documents referenced herein contain the entire agreement
between the Parties regarding the subject matter hereof, and
all prior agreements .or understandings, oral or written, are
hereby merged herein. This Agreement shall not be amended,
except as expressly provided herein.
22. Waiver. No waiver of any provision of this Agreement shall
constitute a waiver of any other provision, whether or not
similar; nor shall any such waiver constitute a continuing or
subsequent waiver of the same provision. No waiver shall be
binding, unless it is executed in writing by a duly authorized
representative of the Party against whom enforcement of the
waiver is sought.
23. Severability. If any provision of this Agreement is
determined by a court of competent jurisdiction to be invalid
or unenforceable, the remainder of this Agreement shall be
effective to the extent the remaining provisions are not
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
SunCal Dev Agr -Draft 1110 2003.doc -30-
ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
25. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole benefit of the Parties and their
successors in interest. No other person shall have any right
of action based upon any provision of this Agreement.
26. Recordation of Agreement and Amendments. This Agreement and
any amendment thereof shall be recorded with the County
Recorder of the County of Ventura by the City Clerk of City
within the period required by Ordinance 59 of City or any
successor thereof then in effect.
27. Cooperation Between City and Developer. City and Developer
shall execute and deliver to the other all such other and
further instruments and documents as may be necessary to carry
out the purposes of this Agreement.
28. Rules of Construction. The captions and headings of the
various sections and subsections of this Agreement are for
convenience of reference only, and they shall not constitute a
part of this Agreement for any other purpose or affect
interpretation of the Agreement. Should any provision of this
Agreement be found to be in conflict with any provision of the
Project Approvals or the Subsequent Approvals, the provision
of this Agreement shall prevail. Should any provision of the
Implementation Plan be found to be in conflict with any
provision of this Agreement, the provisions of the
Implementation Plan shall prevail.
29. Joint Preparation. This Agreement shall be deemed to have
been prepared jointly and equally by the Parties, and it shall
not be construed against any Party on the ground that the
Party prepared the Agreement or caused it to be prepared.
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
SunCal Dev Agr -Draft 1110 2003.doc
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000047
its reasonable attorneys' fees and litigation expenses and
costs, and any judgment, order or decree rendered in such
action, suit or proceeding shall include an award thereof.
32. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but
all of which constitute one and the same instrument.
IN WITNESS WHEREOF, Moorpark 150, LLC, and City of Moorpark
have executed this Development Agreement on the date first above
written.
MOORPARK 150, LLC
Bruce Elieff
Member
CITY OF MOORPARK
Patrick Hunter
Mayor
SunCal Dev Agr -Draft 1110 2003.doc —32—
o00048
EXHIBIT "Bn
ADDRESSES OF PARTIES
To City:
City of Moorpark
799 Moorpark Avenue
Moorpark, CA 93021
Attn: City Manager
To Developer:
Moorpark 150, LLC
21900 Burbank Blvd., Suite 114
Woodland Hills, CA 91367
Attn: Ed Pickett
000049
RESOLUTION NO. PC 2003-
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 MOORPARK
150, LLC, (SUNCAL COMPANIES) REGARDING CONTRACTUAL
OBLIGATIONS RELATED TO THE DEVELOPMENT OF VESTING
TENTATIVE TRACT NO. 5130
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 Vesting Tentative Tract No. 5130 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 Mitigated Negative Declaration, General
Plan Amendment, Zone Change, Vesting Tentative Tract Map and
Residential Planned Development requests and has made
recommendations to the City Council pertaining to the approval of
said requests; and
WHEREAS, the Mitigated Negative Declaration prepared for
General Plan Amendment No. 1998 -01, Zone Change No. 1998 -01,
Vesting Tentative Tract Map No. 5130 and Residential Planned
Development Permit No. 1998 -02 is sufficient environmental
documentation 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 Mitigated
Negative Declaration for the project, therefore, no further
environmental documentation is necessary; 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
WHEREAS, a duly noticed public hearing wa
Planning Commission on December 2, 2003,
Development Agreement and to accept public
thereto; and
s conducted by the
to consider the
testimony related
PC ATTACHMENT 2 000050
Resolution No. PC -2003-
Page No. 2
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, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. ENVIRONMENTAL DOCUMENTATION: 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 Mitigated Negative Declaration
prepared for the General Plan Amendment, Zone Change, Vesting
Tentative Tract Map and Residential Planned Development Permit.
SECTION 2. RECOMMENDATION: 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 Vesting
Tentative Tract Map No. 5130, at the request of the City Council,
hereby recommends that the City Council, at public hearing before
said Council, approve Development Agreement No. 1998 -03 in the form
and content presented to the Planning Commission on December 2,
2003.
SECTION 3. DOCUMENTS TO CITY COUNCIL: A copy of this
Resolution, documents furnished by the public, and minutes of the
public hearing shall be furnished to the City Council.
SECTION 4. FILING OF RESOLUTION: The Community Development
Director shall certify to the adoption of this resolution and shall
cause a certified resolution to be filed in the book of original
resolutions.
PASSED, APPROVED, AND ADOPTED this 2nd day of December 2003.
AYES:
NOES:
ABSTAINED:
ABSENT:
Kipp A. Landis, Chair
ATTEST:
Barry K. Hogan,
Community Development Director
0()C
ITEM: 8. B.
MOORPARK PLANNING COMMISSION
AGENDA REPORT
TO: Honorable Planning Commission pg�1�6
FROM: Barry K. Hogan, Community Development Director
Prepared by: David A. Bobardt, Planning Manager
DATE: November 24, 2003 (PC Meeting of 12/2/2003)
SUBJECT: Consider General Plan Amendment No. 2001 -05, Zone Change
No. 2001 -021 and Specific Plan No. 2001 -01, for 1,650
Housing Units on 3,586.3 Acres Located Generally North of
Moorpark College and State Route 118 on Land Immediately
Outside City of Moorpark Municipal Boundaries. Applicant:
North Park Village, LP (APN: 500 -0- 120 -065; 500- 0 -170-
135; 500 -0- 180 -125, -135, -145, -155, -165, -175, -185, -
195, -205, -215, -225, -2351 -245, -255; 500 -0- 281 -165, -
175; 500 -0- 292 -135, -145, -195, -215), -225; 615- 0 -110-
205, -215; 615 -0- 150 -185)
BACKGROUND
On November 18, 2003, the Planning Commission took additional
testimony on the proposed North Park Specific Plan and expressed
some preliminary concerns. The agenda item was continued with the
hearing open to the December 2, 2003 meeting. Staff also reported
that Dr. Frank DePasquale, Superintendent of the Moorpark Unified
School District, is planning to attend the December 2, 2003
meeting, to answer questions on school facility needs expected from
the project.
DISCUSSION
Several of the concerns expressed by the Planning Commission center
on issues that are being addressed in a Development Agreement, not
through a General Plan or Specific Plan document. Attached for
reference is a copy of the draft Development Agreement that the
applicant has submitted to the Council Ad -Hoc Committee (Hunter and
Harper). It should be noted that the Planning Commission has not
been asked to comment on this Development Agreement at this time.
Other concerns raised by the Planning Commission will be addressed
in the environmental document. Staff has been focusing attention
\ \mor_pri_sery \City Share \Community Development \DEV PMTS \S P \11 -North Park \Agenda Reports \031202
PC Report.doc 000052
Honorable Planning Commission
December 2, 2003
Page 2
on completion of the responses to comments received on the Draft
Environmental Impact Report (EIR). It is expected that the Revised
Draft EIR will be distributed prior to the December 16, 2003
Planning Commission meeting. A report from the EIR consultant will
be presented at that meeting to go over the main issues that were
raised on the Draft EIR and how those issues are being addressed.
STAFF RECONMMATION
Continue to accept public comments and continue the agenda item
with the public hearing open to the December 16, 2003 Planning
Commission meeting.
Attachment
Draft Development Agreement (As submitted by North Park
Village, L.P.)
000053
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
000054
PC ATTACHMENT
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PREANNEXATION
DEVELOPMENT AGREEMENT
BY AND BETWEEN
THE CITY OF MOORPARK
AND
NORTH PARK VILLAGE L.P. for
NORTH PARK SPECIFIC PLAN NO. 11
THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS
OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO
THE REQUIREMENTS OF GOVERNMENT CODE Section 65868.5
DEVELOPMENT AGREEMENT
This Development Agreement ( "the Agreement ") is made and entered into by and
between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City ")
and North Park Village L.P., a California limited partnership, the owner of real property within
the City of Moorpark generally referred to as North Park Village and Nature Preserve Specific
Plan 11 (referred to hereinafter individually as "Developer ")'. City and Developer are referred
to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual
covenants and agreements contained in this Agreement, City and Developer agree as follows:
1. Recitals. This Agreement is made with respect to the following facts and for the
following purposes, each of which is acknowledged as true and correct by the Parties:
1.1. Pursuant to Government Code Section 65864 et ses . 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.
' Approximately 8.8 acres of the Specific Plan 11 area is owned by Ventura Community College District.
00005`"5
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1 1.2. Prior to approval of this Agreement, but after the certification of Specific Plan
2 11 Final Environmental Impact Report ( "the EIR "), the City Council of City
3 ( "the City Council ") approved a mitigation monitoring program to insure
4 compliance with the mitigation measures contained in the EIR ( "the
5 Mitigation Monitoring Program "), approved General Plan Amendment No.
6 2001 -05 ( "GPA _2001 -05 ") and Specific Plan 11 (2001 -01) for
7 approximately _3,444.5 acres of land adjacent to the City as more
8 specifically described in Exhibit "A" attached hereto and incorporated herein
9 ( "the Property "), and changed the zoning of the Specific Plan 11 area pursuant
10 to Zone Change No. _2001 -02 ( "ZC _2001 -02
11 1.3. GP _2001 -05 , SP 2001 -01 and ZC 2001 -02 (collectively "the Project
12 Approvals; individually "a Project Approval ") provide for the development of
13 the Property as a master planned community and the construction of certain
14 off -site improvements in connection therewith.
15 1.4. By this Agreement, City desires to obtain the binding agreement of Developer
16 to develop the Property in accordance with the Project Approvals and this
17 Agreement. In consideration thereof, City agrees to limit the future exercise
18 of certain of its governmental and proprietary powers to the extent specified
19 in this Agreement.
20 1.5. By this Agreement, Developer desires to obtain the binding agreement of City
21 to permit the development of the Property in accordance with the Project
22 Approvals and this Agreement. In consideration thereof, Developer agrees to
23 waive its rights to legally challenge the limitations and exactions imposed
24 upon the development of the Property pursuant to the Project Approvals and
25 this Agreement and to provide the public benefits and improvements
26 specified in this Agreement.
27 1.6. City and Developer acknowledge and agree that the consideration that is to be
28 exchanged pursuant to this Agreement is fair, just and reasonable and that
000056
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1 this Agreement is consistent with the General Plan of City, as amended by GP
2 2001 -05
3 1.7. On , the Planning Commission of City commenced a duly noticed
4 public hearing on this Agreement, and at the conclusion of the hearing
5 recommended approval of the Agreement.
6 1.8. On , the City Council commenced a duly noticed public hearing
7 on this Agreement, and at the conclusion of the hearing approved the
8 Agreement by Ordinance No. ( "the Enabling Ordinance ").
9
10 2. Property Subject To This Agreement. All of the property within Specific Plan 11 owned
11 by North Park Village L.P. (approximately 8,544 acres), shall be subject to this
12 Agreement ( "Property ").
13
14 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the
15 Agreement inure to, each Party and each successive successor in interest thereto and
16 constitute covenants that run with the Property. Whenever the terms "City" and
17 "Developer" are used herein, such terms shall include every successive successor in
18 interest thereto, except that the term "Developer" shall not include the purchaser or
19 transferee of any lot within the Property that has been fully developed in accordance
20 with the Project Approvals and this Agreement.
21 3.1. Constructive Notice and Acceptance. Every person who acquires any right,
22 title or interest in or to any portion of the Property in which a Developer has a
23 legal interest is, and shall be, conclusively deemed to have consented and
24 agreed to be bound by this Agreement, whether or not any reference to the
25 Agreement is contained in the instrument by which such person acquired
26 such right, title or interest.
27 3.2. Release Upon Transfer. Upon the sale or transfer of any Developer's interest
28 in any portion of the Property, that Developer shall be released from its
29 obligations with respect to the portion so sold or transferred subsequent to the
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1 effective date of the sale or transfer, provided that the Developer (i) was not in
2 breach of this Agreement at the time of the sale or transfer and (ii) prior to the
3 sale or transfer, deliver to City a written assumption agreement, duly
4 executed by the purchaser or transferee and notarized by a notary public,
5 whereby the purchaser or transferee expressly assumes the obligations of
6 Developer under this Agreement with respect to the sold or transferred
7 portion of the Property. Failure to provide a written assumption agreement
8 hereunder shall not negate, modify or otherwise affect the liability of the
9 purchaser or transferee pursuant to this Agreement. Nothing contained
10 herein shall be deemed to grant to City discretion to approve or deny any
11 such sale or transfer, except as otherwise expressly provided in this
12 Agreement.
13
14 4. Development of the Property. The following provisions shall govern the subdivision,
15 development and use of the Property.
16 4.1. Permitted Uses. The permitted and conditionally permitted uses of the
17 Property shall be limited to those that are allowed by the Project Approvals
18 and this Agreement.
19 4.2. Development Standards. All design and development standards, including
20 but not limited to density or intensity of use and maximum height and size of
21 buildings, that shall be applicable to the Property are set forth in the Project
22 Approvals and this Agreement.
23 4.3. Building Standards. All construction on the Property shall adhere to the
24 Uniform Building Code, including the Fire Resistive Design Manual, the
25 National Electrical Code, the Uniform Plumbing Code, the Uniform
26 Mechanical Code, the Uniform Housing Code, the Uniform Code for the
27 Abatement of Dangerous Buildings, the Uniform Code for Building
28 Conservation and the Uniform Administrative Code in effect at the time the
1 i f 1
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1 plan check or permit is approved and to any federal or state building
2 requirements that are then in effect (collectively "the Building Codes ").
3 4.4. Reservations and Dedications. All reservations and dedications of land for
4 public purposes that are applicable to the Property are set forth in the Project
5 Approvals and this Agreement.
0
7 5. Vesting of Development Rights.
8 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37
9 Cal.3d 465 (1984), the California Supreme Court held that the failure of the
10 parties therein to provide for the timing or rate of development resulted in a
11 later - adopted initiative restricting the rate of development to prevail against
12 the parties' agreement. City and Developer intend to avoid the result in
13 Pardee by acknowledging and providing that Developer shall have the right,
14 without obligation, to develop the Property in such order and at such rate and
15 times as Developer deems appropriate within the exercise of their subjective
16 business judgment.
17
18 In furtherance of the Parties intent, as set forth in this section, no future
19 amendment of any existing City ordinance or resolution, or future adoption of
20 any ordinance, resolution or other action, that purports to limit the rate or
21 timing of development over time or alter the sequencing of development
22 phases, whether adopted or imposed by the City Council or through the
23 initiative or referendum process, shall apply to the Property. Nothing in this
24 section shall be construed to limit City's right to insure that Developer timely
25 provides all infrastructure required by the Project Approvals, Subsequent
26 Approvals, and this Agreement.
27 5.2. Amendment of Project Approvals. No amendment of any of the Project
28 Approvals, whether adopted or approved by the City Council or through the
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1 initiative or referendum process, shall apply to any portion of the Property,
2 unless the Developer has agreed in writing to the amendment.
3 5.3. Issuance of Subsequent Approvals. Applications for land use approvals,
4 entitlements and permits, including without limitation subdivision maps (e.g.
5 tentative, vesting tentative, parcel, vesting parcel, and final maps),
6 subdivision improvement agreements and other agreements relating to the
7 Property, lot line adjustments, preliminary and final planned development
8 permits, use permits, design review approvals (e.g. site plans, architectural
9 plans and landscaping plans), encroachment permits, and sewer and water
10 connections that are necessary to or desirable for the development of the
11 Property (collectively "the Subsequent Approvals "; individually "a Subsequent
12 Approval ") shall be consistent with the Project Approvals and this
13 Agreement. For purposes of this Agreement, Subsequent Approvals do not
14 include building permits.
15
16 Subsequent Approvals shall be governed by the Project Approvals and by the
17 applicable provisions of the Moorpark General Plan, the and other City
18 ordinances, resolutions, rules, regulations, policies, standards and
19 requirements as most recently adopted or approved by the City Council or
20 through the initiative or referendum process and in effect at the time that the
21 application for the Subsequent Approval is deemed complete by City
22 (collectively "City Laws "), except City Laws that:
23
24 (a) change any permitted or conditional permitted uses of the Property from
25 what is allowed by the Project Approvals;
26 (b) limit or reduce the density or intensity of the Property, or any part thereof,
27 or otherwise require any reduction in the number of proposed buildings or
28 other improvements from what is allowed by the Project Approvals.
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1 (c) limit or control the rate, timing, phasing or sequencing of the approval,
2 development or construction of all or any part of the Property in any manner,
3 provided that all infrastructure required by the Project Approvals to serve the
4 portion of the Property covered by the Subsequent Approval is in place or is
5 scheduled to be in place prior to completion of construction;
6 (d) are not uniformly applied on a City -wide basis to all substantially similar
7 types of development projects or to all properties with similar land use
8 designations;
9 (e) control residential rents;
10 (f) prohibit or regulate development on slopes with grades greater than 20
11 percent, including without limitation Moorpark Municipal Code chapter 17.38
12 or any successor thereto, within all approved planning units of SP 95-
13 2Specific Plan 11,; or
14 (g) modify the land use from what is permitted by the General Plan Land Use
15 Element at the operative date of this Agreement or that prohibits or restricts
16 the establishment or expansion of urban services including but not limited to
17 community sewer systems to the Property.
18 5.4. Term of Subsequent Approvals. The term of any tentative map for the
19 Property, or any portion thereof, shall expire twenty (20) years after its
20 approval or conditional approval or upon the expiration or earlier termination
21 of this Agreement, whichever occurs first, notwithstanding the fact that the
22 final map may be filed in phases. Each Developer hereby waives any right
23 that it may have under the Subdivision Map Act, Government Code section
24 66410 et seq., or any successor thereto, to apply for an extension of the time at
25 which the tentative map expires pursuant to this subsection. No portion of
26 the Property for which a final map or parcel map has been recorded shall be
27 reverted to acreage at the initiative of City during the term of this Agreement.
28 The term of any Subsequent Approval, except a tentative map, shall be one
29 year; provided that the term may be extended by the decision maker for two
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1 (2) additional one (1) year periods upon application of the Developer holding
2 the Subsequent Approval filed with City's Department of Community
3 Development prior to the expiration of that Approval. Each such Subsequent
4 Approval shall be deemed inaugurated, and no extension shall be necessary,
5 if a building permit was issued and the foundation received final inspection
6 by City's Building Inspector prior to the expiration of that Approval.
7
8 It is understood by City and Developer that certain Subsequent Approvals
9 may not remain valid for the term of this Agreement. Accordingly,
10 throughout the term of this Agreement, any Developer shall have the right, at
11 its election, to apply for a new permit to replace a permit that has expired or is
12 about to expire.
13 5.5. Modification of Approvals. Throughout the term of this Agreement,
14 Developer shall have the right, at its election and without risk to any right that
15 is vested in it pursuant to this section, to apply to City for minor modifications
16 to Project Approvals and Subsequent Approvals. The approval or conditional
17 approval of any such minor modification shall not require an amendment to
18 this Agreement, provided that, in addition to any other findings that may be
19 required in order to approve or conditionally approve the modification, a
20 finding is made that the modification is consistent with this Agreement.
21 5.6. Issuance of Building Permits. No building permit, final inspection or
22 certificate of occupancy will be unreasonably withheld from any Developer if
23 all infrastructure required by the Project Approvals, Subsequent Approvals,
24 and this Agreement to serve the portion of the Property covered by the
25 building permit is in place or is scheduled to be in place prior to completion of
26 construction and all of the other relevant provisions of the Project Approvals,
27 Subsequent Approvals and this Agreement have been satisfied. In no event
28 shall building permits be allocated on any annual numerical basis or on any
29 arbitrary allocation basis.
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1 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City,
2 whether by the City Council or through the initiative or referendum process,
3 from adopting or imposing a moratorium on the processing and issuance of
4 Subsequent Approvals and building permits and on the finalizing of building
5 permits by means of a final inspection or certificate of occupancy, provided
6 that the moratorium is adopted or imposed (i) on a City -wide basis to all
7 substantially similar types of development projects and properties with
8 similar land use designations and (ii) as a result of a utility shortage or a
9 reasonably foreseeable utility shortage, including without limitation a
10 shortage of water, sewer treatment capacity, electricity or natural gas.
11
12 6. Developer Agreements.
13 6.1. Developer shall comply with (i) this Agreement, (ii) the Project Approvals,
14 (iii) all Subsequent Approvals for which it was the applicant or a successor in
15 interest to the applicant and (iv) the Mitigation Monitoring Program and any
16 subsequent or supplemental program.
17 6.2. Any land within the Property that is conveyed to Moorpark Unified School
18 District, or any successor district, shall be deed restricted in the form of a
19 covenant running with the land, as set forth in Exhibit "B" attached hereto and
20 incorporated herein, to limit use of the land to public school facilities,
21 kindergarten through 12th grade, and the covenant shall be recorded in the
22 offices of the County Recorder of the County of Ventura concurrently with the
23 deed transferring fee title to MUSD or a successor district.
24 6.3. All lands and interests in land dedicated to City shall be free and clear of liens
25 and encumbrances other than easements or restrictions that do not preclude
26 or interfere with use of the land or interest for its intended purpose, as
27 reasonably determined by City.
28 6.4. As a condition of the issuance of a building permit for each residential or
29 institutional use, as defined in the Specific Plan 11 Development Regulations
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1 (Chapter 5), within the boundaries of the Specific Plan 11, Developer shall pay
2 City a development fee as described herein (the "Development Fee "), except
3 for building permits issued in satisfaction of the City inclusionary housing
4 requirement. The Development Fee may be expended by City in its sole and
5 unfettered discretion. On the effective date of this Agreement, the amount of
6 the Development Fee shall be Seven Thousand Eight Hundred and Fifty
7 Dollars ($7,850.00) per residential unit and Thirty -Five Thousand, Three
8 Hundred Twenty -five Dollars ($35,325.00) per gross acre of institutional land
9 on which the use is located. The fee shall be adjusted annually commencing
10 one (1) year after the first residential building permit is issued within Specific
11 Plan 11 by any increase in the Consumer Price Index (CPI) until all fees have
12 been paid. The CPI increase shall be determined by using the information
13 provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all
14 urban consumers within the Los Angeles /Anaheim/Riverside metropolitan
15 area during the prior year. The calculation shall be made using the month
16 which is four (4) months prior to the month in which the first residential
17 building permit is issued within Specific Plan 11 95 -2 (e.g., if the permit
18 issuance occurs in October, then the month of June is used to calculate the
19 increase). In the event there is a decrease in the referenced Index for any
20 annual indexing, the Development Fee shall remain at its then current amount
21 until such time as the next subsequent annual indexing which results in an
22 increase.
23 6.5. As a condition of the issuance of a building permit for each residential or
24 institutional, as defined in the Specific Plan 11 Development Regulations
25 (Chapter 5), use within the boundaries of the Specific Plan 11, Developer shall
26 pay City a traffic mitigation fee as described herein ( "Citywide Traffic Fee "),
27 except for building permits issued in satisfaction of the City inclusionary
28 housing requirement. The Citywide Traffic Fee may be expended by City in
29 its sole and unfettered discretion. On the effective date of this Agreement, the
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1 amount of the Citywide Traffic Fee shall be Four Thousand Two Hundred
2 Forty Dollars ($4,240.00) per residential unit, and Nineteen Thousand Eighty
3 Dollars ($19,080.00) per acre of institutional land on which the institutional
4 use is located. Commencing on January 1, 2001, and annually thereafter, both
5 categories of the Citywide Traffic Fee shall be increased to reflect the change
6 in the State Highway Bid Price Index for the twelve (12) month period that is
7 reported in the latest issue of the Engineering News Record that is available
8 on December 31 of the preceding year ( "annual indexing "). In the event there
9 is a decrease in the referenced Index for any annual indexing, the Citywide
10 Traffic Fee shall remain at its then current amount until such time as the next
11 subsequent annual indexing which results in an increase. City agrees to
12 provide Developer credit towards this fee for the improvements made to the
13 following circulation element roads: the intersection of Collins Drive and
14 Campus Park Drive, the four lane Moorpark College road and Moorpark
15 College interchange as depicted in Specific Plan 11.
16 6.6. As a condition of issuance of a building permit for each residential or
17 institutional, as defined in the Specific Plan 11 Development Regulations
18 (Chapter 5), use within the boundaries of the Specific Plan 11, Developer shall
19 pay City a community services fee as described herein (Community Services
20 Fee). The Community Services Fee may be expended by City in its sole and
21 unfettered discretion. The amount of the Community Services Fee shall be
22 Two Thousand Thirty Dollars ($2,030.00) per residential unit, and Six
23 Thousand Four Hundred Twenty -Eight Dollars ($6,428.00) per gross acre of
24 institutional land on which institutional use is located. Commencing on
25 October 1, 2002, and annually thereafter, the Community Services Fee shall be
26 adjusted by any increase in the Consumer Price Index (CPI) until all In Lieu
27 Fees have been paid. The CPI increase shall be determined by using the
28 information provided by the U.S. Department of Labor, Bureau of Labor
29 Statistics, for all urban consumers within the Los Angeles /Anaheim/Riverside
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1 metropolitan area during the prior year. The calculation shall be made using
2 the month of June over the prior month of June. In the event there is a
3 decrease in the CPI for any annual indexing, the In Lieu Fee shall remain at its
4 then current amount until such time as the next subsequent annual indexing
5 which results in an increase.
6 6.7. At City's request, Developer shall grant an open space easement to City to
7 retain the lots shown as Open Space. The easement shall be recorded
8 concurrently with recordation of the corresponding map for the Property and
9 shall be in a form acceptable to City.
10 6.8. On the operative date of this Agreement, Developer shall pay all outstanding
11 City processing costs related to preparation of this Agreement, the Specific
12 Plan 11, and EIR.
13 6.9. Within the boundaries of the Specific Plan 11, Developer shall dedicate, at its
14 sole cost and expense, the approximate acres of parkland to the City as shown
15 as public parks on the Specific Plan 11. At its sole cost and expense but
16 subject to the limitations set forth in this subsection, Developer shall make
17 improvements to the park land dedicated pursuant to this subsection and
18 shall provide maintenance of the land and improvements.
19
20 The full construction cost of said improvements for the Property shall not
21 exceed $250,000 per improved acre of park, except for PA -11 (Nature Park).
22 Said amount shall not include any overhead, administrative or similar costs,
23 or profit by Developer or any Developer - affiliated entity. Commencing one (1)
24 year after the first residential building permit is issued within the Specific
25 Plan 11 and annually thereafter, this amount shall be increased to reflect the
26 change in the Price Index that includes park and building construction for the
27 twelve (12) month period that is reported in the latest issue of the Engineering
28 News Record that is available on December 31 of the preceding year (eannual
29 indexinge). In the event there is a decrease in the referenced Index for any
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1 annual indexing, it shall remain at its then current amount until such time as
2 the next subsequent annual indexing which results in an increase.
3
4 Final design, plans and specifications shall be as approved by the City
5 Council, including applicable handicapped requirements, and shall include
6 but not be limited to grading, street improvements, drainage, hardscape
7 (walkways, bike paths, etc.) landscape (trees, shrubs, groundcover, and turf),
8 security lighting for the park and parking lot, and miscellaneous amenities in
9 quantities as determined necessary by City (tot lot and park perimeter
10 fencing, trash receptacles, trash bin enclosures, bike racks, barbecues, picnic
11 tables, pay telephone, identification monument signs, and other signage, etc.).
12 The maximum average cross slope for the net usable park area shall be two
13 percent (2 %) with the intent that the maximum amount of land possible be
14 utilized for park improvements included in this subsection. This cross slope
15 standard may be modified based upon approval by the City Council of a
16 specific park design. The improvement plans and specifications shall be
17 similar to those improvements constructed at other City parks as determined
18 by the City at its sole discretion. In addition to water, sewer and electrical
19 services, the improvements shall include stub into the park at a location
20 determined by City for natural gas, telephone, and cable television services;
21 and if the park is allowed to be rough graded prior to installation of
22 improvements, it shall be hydroseeded and provided with other appropriate
23 means of erosion control. At its sole cost and expense, Developer shall: (i)
24 design the park improvements and submit conceptual plans for City
25 approval, (ii) prepare final design, plans and specifications and submit the
26 same to City Council for approval, (iii) submit the approved final plans and
27 specifications to City for plan check along with appropriate fees, and (iv) pay
28 City for inspection of the construction.
29
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1 The Youth Sports Park (PA -10) shall be dedicated to City, and fully improved
2 prior to the occupancy of the 2501' dwelling unit within the boundaries of the
3 Specific Plan 11. The park site shall be offered for dedication to City upon
4 approval of the Specific Plan's first final map. After the park is opened to the
5 public and prior to its formal acceptance by City, Developer shall provide a
6 minimum of one year and a maximum of two years' maintenance for the park
7 land and improvements, including all labor, materials, and water, in
8 accordance with the specifications used by City at its parks. All land
9 provided by Developer to City for parks, recreation and open space purposes
10 shall be deeded to City without any restrictions for current or future use,
11 except as described in Section 6.24 relating to the fire station site.
12
13 The Parties agree that the above - described improvements along with the
14 dedication of the above - described park land shall be deemed to satisfy the
15 "Quimby" requirement set forth at California Government Code Section
16 66477 et seq. for all subsequent subdivision maps within the Specific Plan 11
17 area for a maximum of 1,650 residential units (1,500 single family market rate
18 residential units and 150 multi- family attached affordable housing units).
19 Developer shall secure the above - described improvements and the one -year
20 maintenance requirement by the execution of City's standard subdivision
21 agreement prior to the approval of the first final map or within the Specific
22 Plan 11 area. Any dwelling units in excess of 1,650 shall be required to satisfy
23 the Quimby requirement in addition to those items contained in this
24 subsection 6. In addition to the required construction and maintenance
25 described above.
26 6.10. Developer shall construct appropriately sized water lines, pumping facilities,
27 and storage facilities for recycled water consistent with the requirements of
28 the City, Waterworks District No. 1 and Calleguas Water District. Said lines
29 shall be installed prior to the final cap being placed on all streets whether the
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1 recycled water is available or not. Developer shall provide service including
2 payment of any connection and meter charges and shall use recycled water
3 for medians and parkways for all public streets, park, and any other public
4 and commonly owned landscaping and recreation areas. The recycled water
5 line(s) shall be installed for each City approved phase of development and the
6 recycled water shall be in use prior to the 501St occupancy Developer shall
7 install dual water meters and services for the park site and other locations
8 determined necessary by City at its sole discretion to insure that both potable
9 and recycled water are available where restroom and drinking fountains are
10 planned.
11 6.11. Greenbelts, open space areas, landscaped areas, and trails lying within each
12 portion of the Property (not covered by any other section) shall be dedicated
13 to City in a form approved by the City Attorney, or to one or more
14 homeowners or property owners associations as determined by the City
15 Council at its sole and unfettered discretion, as a condition of recordation of
16 the final map defining the area within which said areas are located.
17 Greenbelts, buffers and open space areas may include wetlands, storm water
18 detention areas, landscaping and decorative planting areas that do not
19 interfere with greenbelt, buffer and open space uses as determined by the City
20 at its sole and unfettered discretion. Such areas not dedicated to City shall
21 include a open space easement granted to the City in a form acceptable to the
22 City.
23 6.12 Developer agrees to construct one - hundred fifty (150) attached dwelling units
24 within the Specific Plan 11 area that are affordable to "very low ", "low ", and
25 "moderate" income households, as defined by the State Department of
26 Housing and Community Development (HCD) published income levels for
27 Ventura County.
28
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1 The initial rent, eligibility, rent restrictions, size and amenities of units,
2 respective role of City and Developer, and any other item determined
3 necessary by the City shall be set forth in the Affordable Housing Agreement,
4 which shall be approved by the City Council in its sole and unfettered
5 discretion prior to recordation of the first final map for this Property.
6 Developer shall pay the city's direct costs for preparation and review of the
7 Affordable Housing Agreement, up to a maximum of Five Thousand Dollars
8 ($5,000). Developer agrees that prior to the issuance of the 1001St market rate
9 residential building permit at least 75 affordable units as described herein will
10 have received a final building permit. Prior to issuance of the building permit
11 for the 1400th market rate residential building permit, the remaining 75 units
12 (total of 150 units) will have received a final building permit.
13 6.13. Developer agrees that the Mitigation Measures included in the City Council
14 certified Final Environmental Impact Report (EIR) and Mitigation Monitoring
15 Program, or subsequent environmental clearance document approved by the
16 Council, set forth the mitigation requirements for air quality impacts.
17 Developer further agrees that air quality fees, referenced but not specifically
18 calculated in the EIR and Mitigation Monitoring Program, are to be calculated
19 as a condition of the issuance of a building permit for each residential and
20 institutional, as defined in the Specific Plan 11 Development Regulations
21 (Chapter 5), use within the boundaries of the Specific Plan 11. Developer also
22 agrees to pay to City an air quality mitigation fee, as described herein (the Air
23 Quality Fee), in satisfaction of the Transportation Demand Management Fund
24 mitigation requirement in the Final Environmental Impact Report (EIR) for
25 the Specific Plan 11. The Air Quality Fee may be expended by City in its sole
26 discretion for reduction of regional air pollution emissions and to mitigate
27 residual Property air quality impacts.
28
29 (Note: Insert Fee per EIR)
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1
2 6.14 Developer shall install landscaping screening along the west side of PA -15
3 along the rear of the homes on University Drive. The landscape plans shall be
4 approved by the Director of Community Development. Installation of the
5 landscaping shall occur prior to the opening of the Youth Sports Park (PA -10),
6 school (PA -21) or day care (PA -22), whichever occurs first.
7 6.16. Developer agrees to complete road improvements to Collins Drive and
8 Campus Park Drive as defined in Exhibit _ prior to occupancy of the first
9 residential unit in Specific Plan 11. City agrees to provide developer credit
10 toward the citywide traffic fee (Section 6.5) for the cost of improvements
11 above the 9% Project related impact identified in the Specific Plan 11 traffic
12 report.
13 6.17. After the Property is annexed to the City, based on joint resolution No. 98-
14 1536 of the Board of Supervisors of the County of Ventura and the City
15 Council of the City, the City will receive 14.66% of the County's share of the
16 1% Ad Valorem property taxes collected by the County for property within
17 the Property. Parties agree that the property tax revenue allocated from the
18 Property to the City of the annexation constitutes a "shortfall" compared to
19 property tax revenue allocated to the City from property currently within the
20 City's boundaries. Developer agrees to make up the difference "shortfall" of
21 property tax between the newly annexed property and the City's current share
22 of property taxes within the City Boundaries and Tax Rate Areas.
23 Currently, the Property lies within Tax Rate Area ( "TRA ") 67059 and
24 TRA67011. The County's share of the 1% Ad Valorem property taxes within
25 TRA 67059 is 22.5115% and the County's share of the 1% Ad Valorem
26 property taxes within TRA 67011 is 22.6153 %. When the Property will be
27 annexed to the City, the City's share of the 1% Ad Valorem property taxes will
28 be 3.3002% for parcels within TRA 67059 and 3.3154% for parcels within TRA
29 67011.
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1
2 In fiscal year 2002 -03, the overall City allocation of the 1% Ad Valorem
3 property tax collections for all property within the City's boundary was
4 7.3459%
5 When the Property is annexed to the City, the City will experience a shortfall
6 of property tax collections of 4.0457% within TRA 67059 and 4.0305% within
7 TRA 67011 relative to the overall property within the City.
8
9 In order for the City to provide the same level of service to the Property as it is
10 providing to the area currently within the City; the City of Moorpark will
11 need to collect additional amounts from the Property comparable to what it is
12 collecting from other parcels within the City. Except for property upon which
13 affordable housing units are constructed pursuant to the City's inclusionary
14 housing requirements, the Developer, at its option, agrees to compensate the
15 City for the shortfall in the City's property tax revenues by implementing one
16 of the following:
17 • At close of escrow the Developer will pay a one -time fee to the City equal
18 to an amount that would act as an annuity to offset the annual shortfall in
19 property tax in the amount of $4,855 per single- family detached unit for
20 parcels currently within TRA 67059 and $4,837 per single- family detached
21 unit for parcels currently within TRA 67011.
22 • The City will form a Community Facilities District encompassing the
23 Property with two improvement areas. Improvement area A will consist
24 of all parcels within Specific Plan 11 that are currently in TRA 67059 and
25 Improvement area B will consist of all parcels within the Specific Plan 11
26 that are currently in TRA 67011. The CFD will levy a special tax on each
27 parcel of taxable property, pursuant to the lawful rate and method of
28 apportionment, sufficient to generate revenue to offset the property tax
29 revenue short -fall as defined above.
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1 6.18. Developer agrees to cast affirmative ballots for the formation of an assessment
2 district or Community Facilities District for the purpose of levying of
3 assessments or special taxes, for the maintenance of parkway and median
4 landscaping, street lighting and if requested by the City Council, parks for the
5 provision of special benefits conferred by same upon properties within the
6 Property. Developer further agrees to form one or more property owner
7 associations and to obligate said associations to provide for maintenance of
8 parkway and median landscaping, street lighting, and if requested by the City
9 Council, parks in the event the aforementioned assessment district or
10 Community Facilities District is dissolved or altered in any way or
11 assessments are reduced or limited in any way by a ballot election of property
12 owners, or if the assessment district is invalidated by court action.
13 6.19. In addition to fees specifically mentioned in this Agreement, Developer agrees
14 to pay all City capital improvement, development, and processing fees at the
15 rate and amount in effect at the time the fee is required to be paid. Said fees
16 include but are not limited to Library Facilities Fees, Police Facilities Fees, Fire
17 Facilities Fees, entitlement processing fees, and plan check and permit fees for
18 buildings and public improvements. Developer further agrees that unless
19 specifically exempted by this Agreement, it is subject to all fees imposed by
20 City at the operative date of this Agreement and such future fees imposed as
21 determined by City in its sole discretion so long as said fee is imposed on
22 similarly situated properties and complies with Government Code Section
23 66000 to 66008.
24 6.20 The Nature Preserve area (PA -27) area consisting of approximately 2,121 acres
25 as shown in Specific Plan 11 is proposed by Developer to be granted, by deed
26 to an entity approved by the City and Developer; however, the entity
27 receiving the land must be structured as a "qualified conservation
28 contribution" as set forth in Section 170 (h) (1) of the code (Entity) that enables
29 the dedication of open space land to be transferred in a manner and schedule
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1 that insures Developer receives the maximum amount of tax benefits per year
2 over the life of the Property_ As a condition of dedication, this mutually
3 agreed upon Entity shall be obligated to grant City a conservation easement in
4 a form acceptable to City consistent with Civil Code Section 815 et seq., or in
5 the event Developer has not entered into an agreement to donate the land
6 within five (5) years of the operative date of this Agreement, Developer agrees
7 to grant the City a conservation easement in a form acceptable to the City
8 consistent with Civil Code Section 815 et seq.
9 6.21. Prior to the approval of any tentative map , or any other development project
10 or entitlement,Developer shall submit and gain approval from City Council an
11 Infrastructure Plan to specifically address the requirements for
12 implementation, phasing, financing, and construction responsibilities for the
13 circulation, facilities, and services for Specific Plan 11, including both on -site
14 and off -site circulation, facilities, and services. The Infrastructure Plan shall
15 address the specific requirements to be completed, the entity responsible for
16 each item, and the timing for each improvement. Developer agrees to accept
17 the Infrastructure Plan as approved by the City and to install the
18 improvements as reasonably determined by the City as deemed necessary to
19 ensure facilities are available concurrent with need.
20 6.22. Developer shall construct Moorpark College Freeway Interchange and four -
21 lane collector road prior to the 501St occupancy as identified in the Specific
22 Plan 11. Developer is solely responsible for the cost of planning, engineering,
23 land acquisition, and construction. The Interchange and access road must be
24 operational at the 501St Certificate of Occupancy for the Specific Plan 11. The
25 implementation phasing and financing of the improvement shall be further
26 addressed in the Infrastructure Plan.
27 6.23. Developer shall dedicate to the Ventura County Fire Protection District (Fire
28 Protection District) a 1.5 -acre fire station site identified in the Specific Plan 11
29 (PA -23) or at a location mutually agreed upon by the Developer, the City and
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the Fire Protection District. The land shall be deed restricted in the form of a
covenant running with the land as set forth in Exhibit "A" attached hereto and
incorporated herein, to limit use of the land to a fire station, 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 the Fire Protection
District. In the event that the fire station site is located in a location other than
PA -23, then 1.5 acres of PA -23 become part of the Youth Sports Park, and a
comparable 1.5 acre of the Youth Sports Park becomes part of the designated
school site.
6.24. Developer agrees at its sole cost to install traffic signals at any intersection
within the Property as determined by the City, if warranted. Final design,
plans and specifications shall be as approved by the City Council. Developer
shall also pay City's costs for plan check and inspection plus City
administrative costs.
6.25. The 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 in Specific Plan No. 11.
6.26. Developer shall cooperate, and pay all costs, to process an application for
expansion of the City's Sphere of Influence and annexation of the property
encompassed by the Specific Plan 11 to the City of Moorpark.
7. City Agreements.
7.1. City shall commit the necessary time and resources of City staff or qualified
consultants as requested by Developer to work with Developer on the
expedited and parallel processing of applications for Subsequent Approvals
for the Property and shall use overtime and independent contractors
whenever possible. Developer shall assume any risk related to, and shall pay
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1 the additional costs incurred by City for, the expedited and parallel
2 processing.
3 7.2. City agrees that upon receipt of a landowners petition by Developer and
4 Developer payment of a fee, as prescribed in California Government Code
5 Section 53318, City shall commence proceedings to form one or more Mello -
6 Roos Community Facilities District ( "District ") and to incur bonded
7 indebtedness to finance all or portions of the public facilities, infrastructure,
8 maintenance and services that are required by the Specific Plan 11 and this
9 agreement to the extend authorized as provided pursuant to the Mello -Roos
10 Community Facilities Act of 1982 (the "Act "); provided, however, the City
11 Council, in its sole and unfettered discretion, may abandon establishment of
12 the District upon the conclusion of the public hearing required by California
13 Government Code Section 53321 and /or deem it unnecessary to incur bonded
14 indebtedness at the conclusion of the hearing required by California
15 Government Code Section 53345. The City agrees to cooperate with Developer
16 to satisfy all or part of the Specific Plan 11 school impact obligation applicable
17 to Moorpark Unified School District ( "MUSD ") through the District for the
18 purposes of financing school facilities. If MUSD is the lead agency in the
19 formation of a Community Facilities District for the purposes of funding
20 school facilities and City related public improvements, the City will agree to
21 enter into a Joint Community Facilities Agreement so as to authorize the
22 financing of all or portions of public facilities, infrastructure and service that
23 are required by the Specific Plan 11. The formation of the Community
24 Facilities District on the terms described above is a material consideration for
25 Developer entering into this Agreement. In the event that a District is formed,
26 the special tax levied against any residential lot or residence thereon shall
27 afford the buyer the option to prepay the special tax in full prior to the close of
28 escrow on the initial sale of the developed lot by the builder of the residence.
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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 boundaries. The process shall generally
follow Government Code Section 66457 eet 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 Property prior to City Council approval
of a final subdivision map. Said early grading agreement shall be consistent
with the conditions of the Specific Plan 11 and approved tentative map and
contingent on City Engineer and Director of Community Development
acceptance of a Performance Bond in a form and amount satisfactory to them
to guarantee implementation of the erosion control plan and completion of the
rough grading; construction of on -site and off -site improvements consistent
with the City Council approved Specific Plan 11 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 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 land and improvements required under subsection 6.9. of
this Agreement meets Developer's obligation for park land dedication
provisions of state law and City codes except for dwelling units in excess of
1,650.
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1 7.7 The City agrees to appoint an affordable housing staff person to oversee the
2 implementation of the affordable housing requirements for the Specific Plan
3 11 required herein for the duration such units are required to be maintained as
4 affordable consistent with the provisions of subsection 6.14.
5 7.8. City agrees to allow for a variation of ten feet (10') maximum in the grades as
6 shown on the Grading Plan exhibit of the Specific Plan 11 subject to approval
7 of the Director of Community Development upon a determination by the
8 Director in his/her sole discretion that the overall design and visual quality of
9 the Specific Plan 11 would not be significantly affected.
10 7.9. City agrees that Developer is exempt from the payment of Los Angeles
11 Avenue area of contribution (AOC) fees.
12 7.10. City agrees to grant Developer fee credits for improvements made by
13 developer as described in Section 6.5 (Moorpark Collage Intersection) and
14 6.16 (Collins Drive Improvements).
15
16 8. Supersession of Agreement by Change of Law. In the event that any state or federal law
17 or regulation enacted after the date the Enabling Ordinance was adopted by the City
18 Council prevents or precludes compliance with any provision of the Agreement, such
19 provision shall be deemed modified or suspended to comply with such state or federal
20 law or regulation, as reasonably determined necessary by City.
21
22 9. Annual Review. In order to ascertain compliance by Developer with the provisions of
23 this Agreement, the Agreement shall be reviewed annually in accordance with
24 Moorpark Municipal Code chapter 15.40. The failure of City to conduct any such annual
25 review shall not, in any manner, constitute a breach of this Agreement by City, diminish,
26 impede, or abrogate the obligations of Developer hereunder or render this Agreement
27 invalid or void.
28
29 10. Default Provisions.
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1 10.1 Events of Default. A default under this Agreement shall be deemed to have
2 occurred upon the happening of one or more of the following events or
3 conditions:
4 10.1.1 A finding and determination by City made following a periodic review
5 under the procedure provided for in California Government Code Section
6 65865.1 that upon the basis of substantial evidence Developer has not
7 complied in good faith with one or more of the terms or conditions of this
8 Agreement.
9 10.1.2 City does not accept, timely review, or consider requested development
10 permits or entitlements submitted in accordance with the provisions of
11 this Agreement_
12 10.2 Procedure upon Default.
13 10.2.1 Upon the occurrence of default by the other party, City or Developer may
14 terminate this Agreement after providing the other party thirty (30) days
15 written notice appropriate, the manner in which said default may be
16 satisfactorily cured. After proper notice and expiration of said thirty (30)
17 day cure period without cure, this Agreement may be terminated. In the
18 event that City's or Developer's default is not subject to cure within the
19 thirty (30) day period, City or Developer shall be deemed not to remain in
20 default in the event that City or Developer commences to cure within
21 such thirty (30) day period and diligently prosecutes such cure to
22 completion. Failure or delay in giving notice of any default shall not
23 constitute a waiver of any default, nor shall it change the time of default.
24 Notwithstanding any other provision of this Agreement, City reserves the
25 right to formulate and propose to Developer options for curing any
26 defaults under this Agreement for which a cure is not specified in this
27 Agreement.
28 10.2.2 All remedies at law or in equity which are consistent with the provisions
29 of this Agreement are available to City and Developer to pursue in the
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1 event there is a breach provided, however neither party shall have the
2 remedy of monetary damages against the other except for an award of
3 litigation costs and attorneys fees.
4
5 11. Mortgage Protection. At the same time that City gives notice to any Developer of a
6 breach by that Developer, City shall send a copy of the notice to each holder of record of
7 any deed of trust on the portion of the Property in which Developer has a legal interest
8 ( "Financier "), provided that the Financier has given prior written notice of its name and
9 mailing address to City and the notice makes specific reference to this section. The
10 copies shall be sent by United States mail, registered or certified, postage prepaid, return
11 receipt requested, and shall be deemed received upon the third (3rd) day after deposit.
12
13 Each Financier that has given prior notice to City pursuant to this section shall have the
14 right, at its option and insofar as the rights of City are concerned, to cure any such
15 breach within fifteen (15) days after the receipt of the notice from City. If such breach
16 cannot be cured within such time period, the Financier shall have such additional period
17 as may be reasonably required to cure the same, provided that the Financier gives notice
18 to City of its intention to cure and commences the cure within fifteen (15) days after
19 receipt of the notice from City and thereafter diligently prosecutes the same to
20 completion. City shall not commence legal action against Developer by reason of
21 Developer's breach without allowing the Financier to cure the same as specified herein.
22
23 Notwithstanding any cure by Financier, this Agreement shall be binding and effective
24 against the Financier and every owner of the Property, or part thereof, whose title
25 thereto is acquired by foreclosure, trustee sale or otherwise.
26
27 12. Estoppel Certificate. At any time and from time to time, any Developer may deliver
28 written notice to City and City may deliver written notice to any Developer requesting
29 that such Party certify in writing that, to the knowledge of the certifying Party, (i) this
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1 Agreement is in full force and effect and a binding obligation of the Parties, (ii) this
2 Agreement has not been amended, or if amended, the identity of each amendment, and
3 (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description
4 of each such breach. The Party receiving such a request shall execute and return the
5 certificate within thirty (30) days following receipt of the notice. City acknowledges that
6 a certificate may be relied upon by successors in interest to the Developer who requested
7 the certificate and by holders of record of deeds of trust on the portion of the Property in
8 which that Developer has a legal interest.
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10 13. Administration of Agreement. Any decision by City staff concerning the interpretation
11 and administration of this Agreement and development of the Property in accordance
12 herewith may be appealed by the affected Developer to the City Council, provided that
13 any such appeal shall be filed with the City Clerk of City within ten (10) days after the
14 affected Developer receives notice of the staff decision. The City Council shall render its
15 decision to affirm, reverse or modify the staff decision within thirty (30) days after the
16 appeal was filed. The affected Developer shall not seek judicial review of any staff
17 decision without first having exhausted its remedies pursuant to this section.
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19 14. Amendment or Termination by Mutual Consent. In accordance with the provisions of
20 Ordinance No. 59 of City or any successor thereof then in effect, this Agreement may be
21 amended or terminated, in whole or in part, as to any Developer by mutual consent of
22 City and the affected Developer. No amendment shall provide benefits to any
23 Developer on terms more favorable than those provided to Developer by the Project
24 Approvals or this Agreement.
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26 15. Indemnification. Developer shall indemnify, defend with counsel approved by City, and
27 hold harmless City and its officers, employees and agents from and against any and all
28 losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments
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1 arising out of, or resulting in any way from, that Developer's performance pursuant to
2 this Agreement.
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4 Developer shall indemnify, defend with counsel approved by City, and hold harmless
5 City and its officers, employees and agents from and against any action or proceeding to
6 attack, review, set aside, void or annul this Agreement or any provision thereof.
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8 16. Time of Essence. Time is of the essence for each provision of this Agreement of which
9 time is an element.
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11 17. Term. This Agreement shall become effective as a development agreement upon the
12 effective date of the Annexation of the Property into the City (the "Effective Date "). The
13 Term of this Agreement shall begin upon the Effective Date, and shall continue for a
14 period of twenty (20) years ( "Term "). The Term shall also be extended for any period of
15 time during which issuance of grading permits or building permits to Developer is
16 suspended for any reason other than the default of Developer, and for a period of time
17 equal to the period of time during which any action by the City or court action limits the
18 processing of future discretionary approvals, issuance of building permits or any other
19 development of the property consistent with this Agreement.
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21 Expiration of the term or earlier termination of this Agreement shall not automatically
22 affect any Project Approval or Subsequent Approval that has been granted or any right
23 or obligation arising independently from such Project Approval or Subsequent
24 Approval.
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26 Upon expiration of the term or earlier termination of this Agreement, the Parties shall
27 execute any document reasonably requested by any Party to remove this Agreement
28 from the public records as to the Property, and every portion thereof, to the extent
29 permitted by applicable laws.
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1
2 18. Delay Extension of Time for Performance. In addition to any specific provision of this
3 Agreement, performance by either City or Developer of its obligations hereunder shall
4 be excused, and the Term of this Agreement during any period of delay caused at any
5 time by reason of any event beyond the control of City or Developer which prevents or
6 delays and impacts City's or Developer's ability to perform obligations under this
7 Agreement, including, but not limited to, acts of God, enactment of new conflicting
8 federal or state laws or regulations (example: listing of a species as threatened or
9 endangered), judicial actions such as the issuance of restraining orders and injunctions,
10 riots, strikes, or damage to work in process by reason of fire, floods, earthquake, or other
11 such casualties. If City or Developer seeks excuse from performance, it shall provide
12 written notice of such delay to the other within thirty (30) days of the commencement of
13 such delay. If the delay or default is beyond the control of City or Developer, and is
14 excused, an extension of time for such cause will be granted in writing for the period of
15 the enforced delay, or longer as may be mutually agreed upon.
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17 19. Notices. All notices and other communications given pursuant to this Agreement shall
18 be in writing and shall be deemed received when personally delivered or upon the third
19 (3rd) day after deposit in the United States mail, registered or certified, postage prepaid,
20 return receipt requested, to the Parties at the addresses set forth in Exhibit "C" attached
21 hereto and incorporated herein.
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23 Any Party may, from time to time, by written notice to the other, designate a different
24 address which shall be substituted for the one above specified.
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26 20. Entire Agreement. This Agreement contains the entire agreement between the Parties
27 regarding the subject matter hereof, and all prior agreements or understandings, oral or
28 written, are hereby merged herein. This Agreement shall not be amended, except as
29 expressly provided herein.
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21. 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.
22. 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.
23. Relationship of the Parties. Each Party acknowledges that, in entering into and
performing under this Agreement, it is acting as an independent entity and not as an
agent of any of the other Parties in any respect. Nothing contained herein or in any
document executed in connection herewith shall be construed as creating the
relationship of partners, joint ventures or any other association of any kind or nature
between City and Developer, jointly or severally.
24. 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.
25. 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.
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1 26. Cooperation Between City and Developer. City and each Developer shall execute and
2 deliver to the other all such other and further instruments and documents as may be
3 necessary to carry out the purposes of this Agreement.
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5 27. Rules of Construction. The captions and headings of the various sections and
6 subsections of this Agreement are for convenience of reference only, and they shall not
7 constitute a part of this Agreement for any other purpose or affect interpretation of the
8 Agreement. Should any provision of this Agreement be found to be in conflict with any
9 provision of the Project Approvals or the Subsequent Approvals, the provision of this
10 Agreement shall prevail. Should any provision of the Infrastructure and Financing Plan
11 be found to be in conflict with any provision of this Agreement, the provisions of the
12 Infrastructure and Financing Plan shall prevail.
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14 28. joint Preparation. This Agreement shall be deemed to have been prepared jointly and
15 equally by the Parties, and it shall not be construed against any Party on the ground that
16 the Party prepared the Agreement or caused it to be prepared.
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18 29. Governing Law and Venue. This Agreement is made, entered into, and executed in the
19 County of Ventura, California, and the laws of the State of California shall govern its
20 interpretation and enforcement. Any action, suit or proceeding related to, or arising
21 from, this Agreement shall be filed in the appropriate court having jurisdiction in the
22 County of Ventura.
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24 30. Attorneys' Fees. In the event any action, suit or proceeding is brought for the
25 enforcement or declaration of any right or obligation pursuant to, or as a result of any
26 alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable
27 attorneys' fees and litigation expenses and costs, and any judgment, order or decree
28 rendered in such action, suit or proceeding shall include an award thereof.
29
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31. 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, North Park Village L.P. and City of Moorpark have executed
this Development Agreement on the date first above written.
NORTH PARK VILLAGE L.P. CITY OF MOORPARK
Kim John Kilkenny
Authorized Representative
Patrick Hunter
Mayor
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