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HomeMy WebLinkAboutORD 069 1986 0421ORDINANCE NO. 69 AN ORDINANCE OF THE CITY OF MOORPARK, CALIFORNIA APPROVING A DEVELOPMENT AGREEMENT BETWEEN THE CITY AND UWC MOORPARK INVESTORS (PLANNED COMMUNITY NO. 3) WHEREAS, after a duly noticed public hearing on March 26, 1986, the Planning Commission of the City of Moorpark adopted Planning Commission Resolution No. 86 -92, recommending approval of a proposed development agreement between the City and UWC Moorpark Investors (the "Development Agreement ") for the project commonly known as Planned Community No. 3 (the "project "); and WHEREAS, at a duly noticed public hearing on April 7, 1986, the City Council of the City of Moorpark has received testimony regarding said Development Agreement; and WHEREAS, the City Council has reviewed said Development Agreement, has reviewed and considered the in- formation contained in the Environmental Impact Report prepared for the project, has considered the testimony presented at said public hearing and has reached its decision in the matter. NOW, THEREFORE, the City Council of the City of Moorpark, California, does ordain as follows: SECTION 1. The Development Agreement is hereby approved based upon the following findings: 1. The environmental effects discussed in the EIR prepared for PC -3 and the Development Agreement are similar enough to warrant the same treatment in an EIR, and certify that the PC -3 Final Environmental Impact Report adequately covers the impacts of the Development Agreement, and pursuant to State CEQA Guidelines, that this body has reviewed and considered the information contained therein. 2. The provisions of the agreement are consistent with the General Plan and City Ordinance No. 59. SECTION 2. Within ten (10) days after the effective date of this ordinance, the City Clerk shall cause a copy of the Development Agreement to be recorded in the office of the County Recorder. SECTION 3. Upon the effective date of this ordinance, the Director of Community Development shall cause the property that is the subject of the Development Agreement to be identified on the zoning map of the City by the desig- nation "DA" followed by the dates of the term of said Agreement. SECTION 4. That this ordinance shall take effect 30 days after final passage and adoption. SECTION 5. That the City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark News, a weekly newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. PASSED AND ADOPTED this 21st day of April Q2'n12'0_'1 s - /'� ) Mayo of the City of Moorpark, California ATTEST: F_ STATE OF CALIFORNIA ) COUNTY OF VENTURA ) SS. CITY OF MOORPARK ) I, DORIS D. BANKUS , City Clerk of the City of Moorpark, Calfi.ornia, do hereby certify that the foregoing Ordinance No. 69 was adopted by the City Council of the City of Moorpark, at a regular meeting thereof, held on the 21st day of April , 19 86 and that the same was adopted by the following vote, to wit: AYES: Councilmembers Prieto, Ferguson, Woolard and Mayor Weak; NOES: None; ABSENT: Councilmember Yancy- Sutton; ABSTAIN: None. WITNESS my hand and the official seal of said City this 21st day of April , 19 86 CITY CLERK r; RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 CJK /JWS128 3/21/86 4/4/86 DEVELOPMENT AGREEMENT CITY OF MOORPARK UWC MOORPARK INVESTORS MOUNTAIN MEADOWS PROJECT THIS AGREEMENT SHALL BE RECORDED PURSUANT TO GOVERNMENT CODE SECTION 65868.5. ORIGINAL .f ' -0 DEVELOPMENT AGREEMENT CITY OF MOORPARK UWC MOORPARK INVESTORS MOUNTAIN MEADOWS PROJECT Table of Contents Page Table of Contents i Index of Defined Terms v List of Exhibits vi RECITALS A. Location of Property 1 B. Project on the Property 1 C. Governmental Entities 1 D. County Actions Taken Prior to City Incorporation 1 E. City Actions Previously Taken 2 F. CEQA Compliance 3 G. Ancillary Agreements 3 H. History of this Development Agreement 4 I. Notice, Hearings and Actions 4 COVENANTS AND AGREEMENTS 1. Consideration 4 A. Arroyo Simi Bridge 4 B. Community Park Site 5 C. Construction of Tierra Rejada Road 5 D. Contribution to Traffic Signal 6 E. Access Road to Community Park Site 6 F. Utilities to the Community Park Site 6 G. Fees for the Improvement of the Community Park Site 7 H. Works of Construction 7 I. North Village Park Site 8 J. Liberty Bell Road 9 K. Reservation for the City of a Site in the Community Focus Area 10 L. Waiver of Density Bonuses 10 M. Guarantee of Cable Television Franchise Fee 10 N. Minimum Fee Payment 11 O. Administrative Expenses 11 P. Release from Area of Contribution 11 Q. Vesting 12 CJK /JWS128 -1- r „ 2. Project Design A. Permitted Land Uses 17 12 B. Density /Intensity of Use and Building Size 12 C. Building Height Fire Protection and Police Facilities 13 D. Reservation of School Sites 13 E. Reservation of Site in Community Focus Area 13 F. Extent of Dedications and Reservations 13 G. Use Restrictions 19 14 3. Future Grants of Land Use Approvals and Minor Modifications 14 A. Land Use Approvals 14 B. Minor Modifications 15 C. Conditions to Approvals 15 D. Application of CEQA 15 4. Future Issuance of Construction Approvals and Provision of Utility Services 15 A. Construction Approvals B. Utility Services 5. Regulation of the Project 15 16 17 A. Existing Development Policies 17 B. Existing Development Policies to Govern 18 C. Specific Limitations 18 (1) Fire Protection and Police Facilities Conditions 18 (2) Parks and Recreation Conditions 18 (3) Water Supply Conditions 18 (4) Flood Control Conditions 19 (5) School Conditions 19 (6) Traffic Mitigation Conditions 19 D. Special Taxes 19 E. Utility Capacity 19 F. Air and Water Plans 20 G. Inapplicability of Growth Management Controls 20 H. Application of Superior Law 20 6. Term of Agreement and Events During Term 20 A. Term 20 B. Extension by Agreement 21 C. Extension by Moratorium 21 D. Amendment 21 CJK /JWS128 -ii- 7. Annual Review, Termination, Default and Judicial Review 21 A. Termination 21 (1) By the City after Annual Review 21 (2) At the Developer's Election 22 B. Default 23 (1) By the Developer 23 (2) By the City 24 C. Judicial Invalidation 24 D. Judicial Review 25 (1) Early Resolution 25 (2) Attorney's Fees 25 (3) Non - performance by the City due to Court Order 26 (4) Position of the City in Litigation 26 E. Declaratory Relief 26 F. Remedies 26 8. Successors 26 A. Application 26 B. Covenants and Conditions Running With the Land 26 C. City's Successors 27 D. Developer's Successors 27 E. Developer's Assignees 27 (1) Benefits 27 (2) Obligations 27 (3) Limitation of Rights of Assignees 28 (4) Default by Successors 28 9. Notices 28 A. Method and Address 28 B. When Given 28 10. Rules of Construction; Miscellaneous 29 A. Recitals 29 B. Headings 29 C. Exhibits 29 D. band Use Entitlements 29 E. Governing Law 29 F. Limitation of Reliance Upon City 29 G. Time of Essence 30 H. Duplicate Originals 30 I. Advice of Legal Counsel 30 J. Third Party Beneficiaries; 30 K. Waiver 30 -iii - CJK /JWS128 :r f L. Indemnification 30 M. Covenant of Cooperation, Good Faith and Fair Dealing 31 N. Entire Agreement 31 CJK /JWS128 -iv- Index of Defined Terms -v- CJK /JWS128 Paragraph Term Defined In Page Access Road lE 6 Area of Contribution 1P 11 Bridge lA 4 CEQA Recital F 3 City Preamble 1 Construction Approvals 4A 16 County Recital C 1 Developer Preamble 1 Development Year 1N 11 Effective Date Recital E 2 EIR Recital F 3 Equivalent Dwelling Unit 1N 11 Existing Development Policies 5A 17 Growth Management Control 5G 20 Land Use Approvals 3A 14 Land Use Entitlements Recital E 2 Moratorium 6C 21 Mountain Meadows Recital B 1 Park Site Utilities 1F 6 Planned Community No. 3 Recital B 1 Project Recital B 1 Property Recital A 1 RMA Recital F 3 Road 1B 5 School District 2D 13 Standard Specifications 5A 17 Uniform Codes 5A 17 Utility 4B(1) 16 Waterworks District 5C(3) 19 -v- CJK /JWS128 List of Exhibits "A" Legal Description of Property "B" "MOUNTAIN MEADOWS, A Planned Community, Report and Development Program, April 1985" (Including the amended Master Plan, Specific Plan, Development Program and Phasing Plan, City Resolution 85 -246 and Errata Sheet) "C" Agreement for Dedication and Improvement of Park Sites CJK /JWS128 -vi- DEVELOPMENT AGREEMENT THIS DEVELOPMENT AGREEMENT (this "Agreement ") is made this day of , 1986, by and between the CITY OF MOORPARK. a municipal corporation organized and existing under the general laws of the State of California (the "City "), and UWC- MOORPARK INVESTORS, LTD., a California limited partnership (the "Developer "), with reference to the following facts and circumstances: RECITALS A. Location of Property. The Developer warrants that it is the owner, in fee simple, of all of the lands located in the City, County of Ventura, State of California, legally described in Exhibit "A" (the "Property "). B. Project on the Property. The Developer has, as of the date of this Agreement, commenced construction of portions of an 848.5 acre residential /commercial planned community to be created on the Property. The planned community is known as "Planned Community No. 3" in the City's records, is defined in Exhibit "B" entitled "MOUNTAIN MEADOWS - -A Planned Community, Report and Development Program, April 1985 ", and is advertised as "Mountain Meadows" (the "Project "). A detailed history of the planning of the Project is contained at pages 13 through 19 of Exhibit "B ". C. Governmental Entities. The City was incorporated as a municipal corporation on July 1, 1983. Prior to that date, the powers, rights and duties of the City relative to the Project were held by the County of Ventura (the "County "). Pursuant to City Ordinance No. 6, the City has adopted certain portions of the Codified Ordinances of the County. D. County Actions Taken Prior to City Incorporation. Pursuant to its powers under the general law of the State of California, and the ordinances and codes of the County, the County gave discretionary approvals to the Project and to the development of portions of the Project as follows: (1) Designation of the Property as "Planned Community No. 3" pursuant to County Ordinance No. 3571; (2) The Master Plan, the Specific Plan, the Development Program, and the Phasing Plan; CJK /JWS128 (3) The Final Maps of Tracts 3274, 3855 and 3864 recorded in the Official Records of the County; (4) Residential Planned Development Permit Nos. 918, 969 (a /k /a 970) and 970 (a /k /a 969 and 971); and (5) The amendment, on February 22, 1983, of the Development Program and the Phasing Plan. E. City Actions Previously Taken. Pursuant to its po- wers under the general law of the State of California and the ordinances and codes of the City, the City has given certain dis- cretionary and ministerial approvals to the Project (the "Land Use Entitlements ") as of the date the ordinance approving this Development Agreement becomes final (the "Effective Date ") to wit: (1) Designation of the Property as "Planned Com- munity No. 3 ", as described in Section 8118- 2.1102 adopted pursuant to City Ordinance No. 6. (2) The amended Master Plan, the amended Specific Plan, the amended Development Program and the amended Phasing Plan (Exhibit "B ") adopted pursuant to City Resolution No. 85- 246. (3) Final Tract Maps with their respective zone changes and designations and Residential Planned Development Permits, including the following which are in full force and effect as of the date this Agreement is made: Zone Change Tract No. and Designation RPD Permit No. 3274 Z 2691 /RPD6.:00 918 3855 Z 2692 /RPD6.00 969 3864 Z 2692 /RPD6.00 970 3998 Z 2704 /RPD5.00 1012 4001 Z 2731 /RPD6.50 1029 (4) Vesting Tentative Tract Maps with their respective zone changes and designations and Residential Planned Development Permits, including the following which are in full force and effect as of the date this Agreement is made: CJK /JWS 128 -2- Zone Change Tract No. and Designation RPD Permit No. 4140 Z 2807 /RPD3.65 1052 4141 Z 2808 /RPD5.00 1053 4142 Z 2809 /RPD2.20 1054 (5) All excavation, grading, building, encroachment and street improvement permits, certificates of occupancy and utility connection authorizations issued to the Developer to develop the Project. F. CEQA Compliance. In connection with the granting of the various discretionary approvals for the Project described in Recitals D and E, the County Board of Supervisors and the City Council reviewed and considered the information contained in the Final Environmental Impact Report dated August 5, 1981 (the "EIR "), incorporated herein by this reference. The County Board of Supervisors and the City Council found that: (i) the EIR had been completed in compliance with the California Environmental Quality Act and the State of California's EIR Guidelines issued in connection therewith (collectively "CEQA "); (ii) the Project may have a significant effect upon the environment; and, (iii) endorsed the mitigation measures for approval of the Project as found by the County Planning Commission and the County's Resource Management Agency (the "RMA ") in the RMA's various staff reports on the Project. G. Ancillary Agreements. In connection with its approval for recording of Tracts 3274, 3855 and 3864, the County Board of Supervisors, acting in its capacity as the Ventura County Fire Protection District, the Ventura County Property Administration Agency, and the Ventura County Waterworks District No. 1, respectively, and the Developer are parties to a Fire Protection Agreement, an Agreement for Dedication and Improvement of Park Sites, set forth in Exhibit "C ", and a Water Tank Facility Agreement, as amended. These agreements pertain to the entire Project, rather than to those three tracts alone. The City, as successor to the County, and the Developer are parties to said Agreement for Dedication and Improvement of Park Sites and certain subdivision improvement, street improvement, storm drain and grading agreements pertaining to Tracts 3274, 3855 and 3864. The City and the Developer are also parties to certain subdivision improvement, street improvement, storm drain and grading agreements pertaining to Tracts 3998 and 4001. The City and the Developer also entered into two agreements pertaining to condemnation of Tierra Rejada Road by the City, each dated January 2, 1985, which agreements are no longer in force or effect. As of the date of this Agreement is -3- CJK /JWS128 made, there are no other agreements, oral or written, between the Developer and the City which pertain to the Project. H. History of this Development Agreement. On October 8, 1981, the County Planning Commission recommended that the County explore the use of a Development Agreement as part of Planned Community No. 3, with the stipulation that the County and the applicant enter into a reimbursement agreement for staff time. On October 20, 1981, the County Board of Supervisors adopted said recommendation. On August 15, 1984, the Developer submitted to the City a draft development agreement for Planned Community No. 3 with a request that said document be considered as its application for a development agreement. On December 16, 1985, the City Council adopted Ordinance No. 59, relative to the establishment of procedures and requirements for the consideration of development agreements, as provided in California Government Code Section 65865. I. Notice, Hearings and Actions. The City Planning Commission and the City Council have given notice to the public of their intention to adopt this Agreement and have conducted public hearings on this Agreement, as required by California Government Code Section 65867 and Municipal Code Section 9.64.080. On March 26, 1986, said Planning Commission adopted its Resolution No. 86 -92 recommending that the said City Council approve this Agreement. On 1986, said City Council adopted its Ordinance No. approving this Agree- ment. NOW, THEREFORE, with reference to the foregoing facts and circumstances, and in consideration of the mutual covenants and agreements contained below, the City and the Developer do agree as follows: COVENANTS AND AGREEMENTS 1. Consideration. The City and the Developer hereby covenant and agree to the giving and receipt of the following consideration: A. Construction of the Arroyo Simi Bridge. As of the Effective Date of this Agreement, the Developer shall have submitted to the City and to the County Flood Control District, preliminary plans for the construction of a four lane bridge to carry Tierra Rejada Road over the Arroyo Simi (the "Bridge "). The Developer shall diligently pursue issuance of all necessary governmental approvals of final working drawings and all necessary permits for construction of the Bridge. The Developer shall commence construction of the Bridge by June 15, 1986, provided that thirty (30) days has elapsed since the Developer has been issued all of said approvals and permits. If -4- CJK/JWS128 construction is not commenced as of said date, the Developer shall commence construction no later than the first May 1st following the Effective Date of this Agreement. The Developer shall diligently prosecute construction of the Bridge to com- pletion. In no event shall the City be required to issue occupancy permits or equivalent documents for more than twelve hundred and thirty (1,230) dwelling unit in the Project until the Bridge is completed. B. Construction of Tierra Rejada Road. The Developer shall construct Tierra Rejada Road (the "Road") from the southerly boundary of Tracts 2817 and 3841 to the northerly boundary of the Property, as illustrated in Exhibit "D ". In connection with said construction which is outside the boundaries of the Property, the City and the Developer agree to enter into a reimbursement agreement pursuant to Government Code Sections 66485- 66489, for the cost of all said construction, including but not limited to, land acquisition, curb, gutter, sidewalk and street improvements and utility installation and relocation. Construction of the Road shall be completed and the Road shall be dedicated to the City concurrently with the Bridge, as provided in Paragraphs lA and 1H of this Agreement. In addition, the Developer shall complete construction and dedication of four (4) travel lanes, curbs, gutters and related improvements of Tierra Rejada Road through the Project, including to the easterly boundary of the Edison property lying at the easterly boundary of the Project, as required by Exhibit "B ", concurrently with the Bridge, as provided in Paragraphs lA and 1H of this Agreement, instead of as provided in Exhibit "B ". C. Construction of Tierra Rejada Improvements. The Developer shall complete construction and dedication of: (1) The median within the center of the Road between the southerly boundary of Griffin Tracts 2817 and 3841 and the easterly boundary of the Edison property lying at the easterly boundary of the Project concurrently with the Bridge, as provided in Paragraphs lA and 1H of this Agreement; and (2) Traffic signals at the intersection of the Road and the following roads in accordance with the following schedule: a. Walnut Creek Road, Meadow Mountain Drive and Mountain Trail Street b. "G" Street -5- CJKIJWS128 Prior to dedication of the Bridge, as provided in Paragraphs IA and 1H Prior to occupancy of tlhe one hundred and tenth (110th) detached dwelling units in the West Village or occupancy of two- thirds (2/3) of the commer- cial floor area in the Community Focus Area, whichever occurs first, or at such earlier time as deemed warranted by the City Engineer. C. "F" Street Prior to occupancy of the two hundred and twentieth (220th) detached dwelling in the West Village or at such earlier time as deemed warranted by the City Engineer. D. Contribution to Traffic Signal. The Developer shall contribute one half the cost of construction, including engineering and design costs, of the traffic signal at the inter- section of Tierra Rejada Road and Los Angeles Avenue at the time the City constructs the signal. The contribution shall be made to the City within thirty (30) days after the award of the con- struction contract by the City Council. E. Access Road to Community Park Site. Within one (1) year after the Effective Date of this Agreement, the Developer shall make an irrevocable offer of dedication to the City of real property within the area of the Property adjacent to the site of the future high school. The real property so offered shall be wide enough to accommodate forty (40) feet of paving width and curbs, gutters, sidewalk on one (1) side and utilities and shall follow an alignment that is suitable for street pur- poses between Tierra Rejada Road and the Community Park site (the "Access Road "). The Developer shall improve the Access Road for street purposes, which construction shall be completed three (3) years after the Effective Date of this Agreement or at such earlier time as required by the City at its sole discretion. F. Utilities to the Community Park Site. The Developer shall construct and dedicate to the City, or other appropriate public or private agency, sewer, water, electrical, telephone, natural gas, cable television and effluent lines (the "Park Site Utilities ") through the Community Park site to the location of the Recreation Center, but not to exceed distance of four hundred (400) feet east of the west property line of the Community Park. Construction of said Park Site Utilities shall be completed concurrently with the Access Road. Within thirty (30) days after the Effective Date of this Agreement, the Developer shall provide the City with a map showing approximately -6- CJKIJWS128 where each of the Park Site Utilities will be extended through the Community Park site to the Recreation Center. G. Fees for the Improvement of the Community Park Site. For each of the last seventeen hundred and seventy -nine (1,779) dwelling units in the Project, the Developer shall pay to the City seven hundred and seventy -five dollars ($775). Said money shall be used only for the improvement of the Community Park site, except that a maximum of ten percent (10 %) of said money, but not to exceed one hundred and thirty -eight thousand dollars ($138,000), may be used, at the City's sole discretion, to improve any of the three (3) village parks, as depicted in Exhibit "B ", with community use facilities, including, but not limited to, tennis courts and tennis court lighting. Said money shall be paid in installments as follows: (i) six hundred thousand dollars ($600,000) shall be paid, without interest, within fifteen (15) days after demand by the City given at any time after three (3) years after the Effective Date of this Agreement, and (ii) the balance shall be paid, without interest, within fifteen (15) days after demand by the City given at any time after six and one half (6 1/2) years after the Effective Date of this Agreement, provided that if the City, pursuant to Paragraph lE of this Agreement, requires early construction of the Access Road, the Developer, at its sole discretion, may delay payment of three hundred thousand dollars ($300,000) of said balance by an amount of time equal to the difference between three (3) years after the Effective Date of this Agreement and the earlier time of construction of the Access Road. H. Works of Construction. The Developer shall construct and prosecute to completion each of the works described in Paragraphs 1A, 1B, 1C, lE and 1F of this Agreement in accord- ance with the applicable Standard Specifications, at its sole cost and lien free. The Developer shall make a good faith effort to acquire temporary and permanent rights -of -way for the Bridge and the Road and median within the Road outside of the boundaries of the Project; failing such efforts, the City, within its authority pursuant to law, shall assist and cooperate with the Developer to acquire such rights -of -way. The Developer shall not be required to commence construction of said Bridge, Road or median pursuant to Paragraphs 1A, 1B and 1C(1) of this Agreement, until such time as a temporary interest which is sufficient to allow for normal construction activity, as determined by the City Engineer, has been acquired. 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(a) The Certificate of Germination shall be signed by the Developer's licensed landscape architect and shall state that there exists at least eighty -five percent (85 %) germination of the seeded Park turf. Said certificate shall be delivered to the City no sooner than thirty (30) days after completion of seeding. Not less than thirty (30) days prior to the intended date of seeding, said landscape architect shall make a written request to the City for authorization to seed, which authorization shall not be unreasonably withheld. (b) The maintenance program shall be prepared by the Developer's licensed landscape architect and shall be delivered to the City, not less than thirty (30) days prior to the intended date of seeding, for its review and approval, which approval shall not be unreasonably withheld. The program shall include, but not be limited to, an irrigation schedule, the frequency, quantities and type of fertilization, the frequency of mowing and the mowing height. If, during the course of the maintenance period, the maintenance, or any portion thereof, becomes unsatisfactory to the City and the City so notifies the Developer, the maintenance period shall be tolled from the date of said notice to the date that the City notifies the Developer in writing that the maintenance has been brought to a condition satisfactory to the City. The satisfaction of the City shall not be unreasonably withheld. During the time that the Developer is responsible for maintaining the Park, the Developer shall: (i) make the park open and available to the public; and (ii) be responsible for the repair and replacement of any damage to the Park caused for any reason whatsoever. As of the date of commencement of the maintenance period, the City shall accept dedication in fee simple absolute of the Park. Upon completion of the Developer's maintenance period, the City shall assume responsibility for, and the expense of, maintaining the Park. J. Liberty Bell Road. Within one hundred and eighty (180) days after the Effective Date of this Agreement, the Developer shall make an irrevocable offer in fee simple absolute to the City of County Assessor's Parcel No. 506 -050 -035, which is approximately forty (40) feet in width and extend; from State -9- CJKIJWS128 Highway 118 to the Arroyo Simi and is generally known as Liberty Bell Road. The Developer warrants that it owns said parcel in fee simple. K. Reservation for the City of a Site in the Community Focus Area. Within twenty -four (24) months after the Effective Date of this Agreement, the Developer shall file with the City a complete application for a tentative or vesting tentative tract map or a parcel map, which map shall include a one acre lot in the Community Focus Area. The location of said one acre lot shall be subject to the City's approval, which shall not be unreasonably withheld. Within one (1) year thereafter, the Developer shall record the final map thereof, which map shall include an irrevocable offer of dedication of said one acre lot to the City. The dedication of the site shall convey a fee simple interest in the site subject to a power of termination if the City improves or uses the site for any purpose other than a community purpose, including, but not limited to, a library, a senior citizens' center or a meeting hall. If the City has been unable to improve the site for a community purpose by the time any land in the Community Focus Area adjacent to the site has been developed, then the City shall have the right to landscape the site at its own expense for temporary use until it is ready to improve the site for its community purpose. Any improvement or use of the site shall be at the City's sole expense and the Developer shall have no liability for any such improvement or use. The Developer shall not be obligated to install any infrastructure or utilities within the site, but at the time that the Developer first provides each utility to any land adjacent to the site, it shall extend such utility to the legal lot line of the site. L. Waiver of Density Bonuses. The Developer waives all rights to any density bonuses for low and moderate income housing provided by Government Code Section 65915 et seg., and any successor or similar statute, to the extent that any such density bonuses would allow the construction of more than two thousand five hundred (2500) dwelling units. The Developer hereby agrees that in no event, however, shall the dwelling unit density in the Project, inclusive of any density bonus, exceed the maximum density, per gross acre, set forth in Paragraph 2B of this Agreement. M. Guarantee of Cable Television Franchise Fee. The Developer guarantees that within ninety (90) days after the Effective Date of this Agreement, Mountain Meadows Cable Tele- vision shall take all steps necessary to amend the franchise to provide that the annual percentage of revenues paid as franchise fees to the City by Mountain Meadows Cable Television, or any -10- CJK/JWS128 successor or assign thereof, shall be the same percentage as paid to the City by Storer Cable Television, or any successor or assign thereof, but in no event shall said percentage be less than three percent (3 %). N. Minimum Fee Payment. The Developer acknowledges that it intends to build a minimum of 100 Equivalent Dwelling Units in each year commencing on the September 1st following the Effective Date of this Agreement ( "Development Year ") and a maximum of 325 Equivalent Dwelling Units in each Development Year. A detached dwelling unit shall equal one "Equivalent Dwelling Unit "; an attached dwelling unit shall equal .625 of an Equivalent Dwelling Unit. If, in any Development Year, the Developer obtains fewer building permits than those required to build 100 Equivalent Dwelling Units, the City, at its option, may require the Developer to then prepay any portion of the required water, sewer, flood control, school, police or fire fees (the "fees ") which the Developer would have otherwise paid if the building permits had been obtained in the Development Year. Said prepayment shall be made within thirty (30) days after demand by the City based upon the fees for detached dwelling units as of the date of the City's demand. The amount of each prepayment, without interest, shall be credited by the City against the fees which the Developer would otherwise be required to pay at the time any building permits for any Equivalent Dwelling Unit are issued in any subsequent Development Year or Years. O. Administrative Expenses. On the Effective Date of this Agreement, the Developer shall pay to the City one hundred fifty thousand dollars ($150,000). Said amount is not in excess of the estimated reasonable cost of adopting and administering this Agreement, other than the annual review, and the ordinance enabling the City to enter into this Agreement. P. Release from Area of Contribution Agreement. While this Agreement is in full force and effect, the Developer shall be released from the Tierra Rejada Road and Moorpark Road Area of Contribution (the "Area of Contribution ") until the building permit for the twenty -one hundred and seventy -fifth (2,175th) dwelling unit in the Project is issued. Immediately thereafter the Developer shall rejoin the Area of Contribution and shall pay the fees in effect at the time the obligation to pay is incurred, provided that the Developer shall not have to pay for any item of work that is not included in the Area of Contribution Report as of the Effective Date of this Agreement. On June 16, 1986 or commencement of construction of the Bridge by the Developer, whichever occurs later, the City shall return to the Developer, without interest, all funds which it has con- tributed to the Area of Contribution as of the Effective Date of this Agreement, provided that the Developer has furnished to the -11- CJKIJWS128 City a bond for the Bridge pursuant to Paragraph 1H of this Agreement. The Developer shall use the funds for construction of the works described in Paragraphs IA, 1C and 1D of this Agreement and for no other purpose. Q. Vesting. The City agrees that the Developer is vested with the right to build the Project, consistent with this Agreement, Exhibit "B ", and the Land Use Entitlements, at such times and in such sequence as the Developer chooses. 2. Project Design. A. Permitted Land Uses. The land uses in the Project shall contain attached and detached residential units, a Community Focus Area including a neighborhood commercial center and a Community Use Area, three neighborhood park sites, one with retention basin, one community park site, private recreation areas, transportation collector points, private open spaces, a watercourse, a fire station site, three school sites, community cable television antennae, and other accessory land uses, all of which are more completely described in Exhibit "B." B. Density /Intensity of Use and Buildinq Size. (1) Exhibit "B" establishes the maximum density and intensity of residential development of the Property, and the locations where residential development of various densi- ties may be constructed. Notwithstanding the foregoing, no more than twenty -five hundred (2,500) dwelling units may be built and no dwelling unit shall contain more than five thousand (5,000) square feet of living space, excluding any garages and common interest subdivision common areas. Furthermore, the density of residential development on any one gross acre of the Property shall not exceed the maximum densities established in Exhib- it "B ", which shall in no event be interpreted to exceed the following: Dwelling Unit Type Detached, single family Attached, townhouse Maximum Density Per Gross Acre 1 15 Attached, condominium /apartment 25 (2) Exhibit "B" establishes the maximum density and intensity of commercial uses on the Property. Not- withstanding the foregoing, the Community Focus Area on the -12- CJ K IJWS 1 2.8 Property, including its parking facilities, shall not exceed 11.5 gross acres of commercially zoned land; nor shall any development of such land exceed fifty percent (50 %) lot coverage. (3) In addition to Paragraph 1 of this Agreement, Exhibit "B" and the Land Use Entitlements establish the park and school sites the Developer is to dedicate or reserve, and the size and capacity of the roads, highways, other public improvements and open spaces the Developer is to construct on the Property. C. Building Height. No dwelling unit, building containing dwelling units, commercial building, recreational building, school building, fire station, structure constructed on a park site or any other structure shall exceed the height limitations for those land uses as established in the Existing Development Policies. Notwithstanding the foregoing, residential buildings shall be limited to a height of forty -five (45) feet and all other buildings and structures shall be limited to a height of fifty (50) feet, measured from finished grade. D. Reservation of School Sites. The Developer shall make available to the Moorpark Unified School District, or its successor, (the "School District ") the three (3) school sites described in Exhibit "B" on terms and conditions satisfactory to the School District. E. Reservation of Site in Community Focus Area. The Developer shall reserve for a period of four (4) years after the Effective Date of this Agreement a site of approximately two and a half (2.5) acres within the Community Focus Area. Said site shall be available for public and quasi - public community uses, including, but not limited to, a church, a library, or a community center, for a consideration and on terms and conditions satisfactory to the Developer in its sole discretion. Any change of use on the site from public or quasi - public community use to commercial use shall require an amendment to Planned Community No. 3. F. Extent of Dedications and Reservations. Except as set forth in this Agreement, Exhibit "B ", the Land Use Entitlements, the Existing Development Policies and the Standard Specifications, no dedication or reservations of the Property, or any portion thereof or interest therein, or of any other prop- erty, shall be required by the City in connection with the grading, excavation, construction, development, improvement, use or occupancy of the Project. Notwithstanding the foregoir,o, prior to conveyance or dedication of any site to the appropriate public agency, the City and the Developer may agree to the relocation of the site. CJK /J'rJS128 > Q, T � pa ° a ... p JG ep r ,J t -,, aQ' Q a i a p aJrp J TAa� JPa a P J J3p a s p oS�AatTA� 64, i`°ys ay�3 a AJ6�Jy 1 ?� 6� �a asp e A a rt s� Ss a STS 110 10 sa �'�' sr ayPy y�pA�6 ago C) �p s� r Ja ay ap t a� y� r9 t U� a�ba °Ja 6LQ 6A Ja r t 9 d J a � �r y � r p • � tP ar 'aA a UJ� o 6atr ' � ypsV? p 9y�s TT� j � ✓ s °r N -lop as s A r�)-p po "146 � 4% s s J a© ° °'o Joa Oaq J6 .?oo° rQ' yJ � �sa � �' nS wa Jp 6 o� r o Go LaoJ a�ar � lUr -atr ' tbA%a� ,�? Gr t r ` s fAr 4t � �, , � J --r °S s tst� tYrr • A . aa r ht LaA 1r r a Aa �A o U L'a o r U �tT �tr , A1 oa ��s �s J a A a t �a , O ,Qa�a � '� o ?a o d' � � yf o t Qo A � � a �� a�, J b P �� aa • A'/a ) � r y p�a 4r a st�,, � s y? A I a a � lA d J a t A s � ,? 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A Is, b a ,9 s aS a,�o y � A Q r sry� y�4 r AaA � t� t TP J,r�rJ Q9 at AoyJ's s p a �dLrAar a d aA id a �trs�sayaaA Q� , d ,•a y �sa at� sst ,t� �,A y so? yt,° pp sA � U ' J a �°a-�� �-J ta• A yr' . r 't a O o o �rla o�a "o p J A gJa t�rr ) °9 Ja� a J 6 AaS tda a�a ° kb 15P ay A J AaAr�.o� ° rjya q . � r•r � s a� � a`s afh �t �tJ s %a r,� yt ` � 9 q 6 •o a1L�r y j Ja ° o�S F 6v '�J p o qy� d r p Jo, O b �, �b � 9 J SA a� 5 �.� 4 � o a` P Jr�o �a A 0 x t to a9 sp .� Js 9A p h , a •� �4a� �ta�r •s a0J6�� manner consistent with Exhibit "B" and the Agreement, but the City shall take no action that would hinder or prevent any such agency from granting any such permit. B. Minor Modifications. Pursuant to Municipal Code Section 9.64.130(c), or successor thereto, the City shall diligently process and grant all minor modifications to Exhibit "B" and the Land Use Approvals if the City's Director of Community Development, at his or her sole discretion, determines that (i) the Developer's application is for a minor modification and (ii) the minor modification would not result in a significant deviation from the Project or have a substantial adverse effect on neighboring property interests within or outside the Property. Any fee charged in connection with the application or processing of any minor modification shall be that usually and customarily charged for such application and processing as of the date of the application. The approval of a minor modification shall not require amendment of this Agreement. C. Conditions to Approvals. The City shall have the right to impose reasonable conditions, consistent with this Agreement on Land Use Approvals and minor modifications. No such conditions shall (i) exceed the specific limitations set forth in Paragraph 5(C) of this Agreement; (ii) prevent development of the Property, at such times and in such sequences as the Developer may choose for the permitted land uses, the density or intensity of use, the maximum size and height of buildings set forth in this Agreement; or (iii) include any requirement that the Devel- oper must delay its construction schedule, make any reservation or dedication, construct any improvements on property owned by the City or a third party, make financial contribution to the City or a third party in lieu of public improvements, or pay any fees to the City or to any third party, except as set forth in this Agreement. D. Application of CEQA. All Land Use Approvals and minor modifications described in this Paragraph are "subsequent uses" of the EIR, and consistent with CEQA shall be exempt from further environmental review. 4. Future Issuance of Construction Approvals an_d__ Provision of Utility Services. A. Constructio_n_Aporovals_. Upon the Developer's application therefor, all of the excavation, grading, building, encroachment and street improvement permits, certificates of occupancy, utility connection authorizations, and other ministerial permits or approvals necessary, convenient or appropriate for the arading, excavation, con>truct.ion, -15- CJK1JWS1 28 development, improvement, use and occupancy of the Project (the "Construction Approvals "), shall be issued by the City at such times and in such sequences as the Developer may choose, provided that: (1) The Developer may obtain building permits for not more than 325 Equivalent Dwelling Units per Development Year, provided that if the Developer obtains fewer than said maximum number of building permits in any Development Year, it may accumulate them for use during the subsequent five (5) Development Years; (2) The Developer shall grade the Property in a manner consistent with Exhibit "B" and similar to the grading permits issued for Tract Nos. 4140, 4141, 4142, including but not limited to, the contour grading practices performed pursuant to said grading permits; (3) The Developer shall comply with Exhibit "B ", the Existing Development Policies, the Uniform Codes, the Standard Specifications and all Land Use Entitlements relative to the portion of the Project to which the Construction Approval pertains; (4) The Developer shall exercise the Construction Approvals in a manner that is consistent with the residential planned development permits that have been issued for the Project prior to the Effective Date of this Agreement; and (5) The Developer shall pay the usual and customary application processing and inspection fees charged for such application processing and inspection as of the date of the application. The issuance of all such Construction Approvals, and all modifications thereto, shall be deemed ministerial acts to be undertaken by the appropriate City officer or employee. All Construction Approvals that are issued shall automatically become Land Use Entitlements for all purposes of this Agreement. B. Utility Services. (1) For purposes of this Agreement, utility services shall include, but not be limited to, sewer, water, electricity, gas, and garbage or solid waste removal (the "Utility "). (2) Beginning in the first Development Year that the City becomes the governing body for any Utility, and to the extent that it has such capacity, the City shall reserve Utility capacity in such system sufficient to allow the Developer -16- CJK/JWS128 to obtain building permits for a total of 325 Equivalent Dwelling Units per Development Year. If the Developer obtains less than said maximum number of building permits in any Development Year, the City shall reserve additional capacity for the subsequent five (5) Development Years equal to the difference between said maximum number of building permits and the number actually obtained. (3) To the extent the City has reserved Utility capacity for the Developer, it shall, upon the Developer's request, timely issue all necessary Utility connection authorizations and provide all necessary hook -ups to the Developer at a fee which shall not exceed the fee to similarly situated customers. (4) Nothing in this Paragraph 4(B) shall constitute a.guarantee by the City that any district or agency not under its control shall be able to reserve or provide Utility capacity or service, but the City shall take no action which would hinder or impede any such district or agency from providing the required capacity or service. 5. Requlation of the Proiect. A. Existing Development Policies. As used in this Agreement, Existing Development Policies shall mean only those policies, ordinances, rules, and regulations which were in existence on the date of final passage of the ordinance approving this Agreement, and which have had copies of them placed in three ring binders with an index identifying the contents acknowledged by the City's Director of Community Development and the Developer. Two of said copies have been given to the Developer and one each of said copies have been placed in the files of the City Attorney and the City Clerk. In no event shall the Uniform Building Code, Uniform Mechanical Code, Uniform Code for the Abatement of Dangerous Building, Uniform Plumbing Code, National Electrical Code, Uniform Housing Code (the "Uniform Codes ") or the County Public Works Agency's Road Standards, Standard Land Development Specifications, Standard Designs and Lard Development Manual, as adopted by the City, the County Flood Control District's Design Standards, the County's Design Criteria and Specifications for Construction and Maintenance - -bv Lessees— Harbors, Airports and Parks, Volumes I, II and III, the City Subdivision Ordinance, adopted by Ordinance No. 6, or any sucessor thereto, and the City form of acreement pursuant to the Subdivision Map Act thereto (the "Standard Specifications ") be included as an Existing Development Policy. she Developer shall comply with the Uniform Codes and Standard Specifications in -17_ CJK /JS•: S 1 7.8 effect as of the time the application for the applicable Land Use Approval or Construction Approval is accepted as complete. B. Existing Development Policies to Govern. Upon the submittal by the Developer after the Effective Date of this Agreement of any application for any Land Use Approval or Construction Approval, the City shall apply only this Agreement, Exhibit "B" and the Existing Development Policies when considering the permitted land uses, the density or intensity of use, the maximum size and height of buildings in the Project, the landscaping requirements for the Project, and the reservation or dedication of land in connection with the Project. When considering any other aspect of the application, the Existing Development Policies shall not apply; instead the City shall apply its ordinances, resolutions, policies, rules and regulations in effect as of the time the application for the Land Use Approval or Construction Approval is accepted as complete. C. Specific Limitations. The following specific limitations on the City's authority to regulate the Project shall all be narrowly construed against the Developer: (1) Fire Protection and Police Facilities Conditions. With respect to all conditions and exactions pertaining to fire protection and police facilities, the City shall impose only those fees charged similarly situated projects pursuant to the Fire Protection Agreement described in Recital "G ", the fire protection capital facilities fee charged under City Ordinance No. 8, or any successor thereto, and the police capital facilities fee charged under Ordinance No. 9, or any suc- cessor thereto. Nothing in this Agreement shall limit the City from imposing in the future on the Project a fee for police or fire services, so long as the fee is also charged on all similarly situated projects. (2) Parks and Recreation Conditions. With respect to all conditions and exactions pertaining to park and recreation needs, including, but not limited to, satisfaction of Quimby Act requirements, the City shall impose only the consideration described in Paragraphs 1E, 1F, 1G and 1I of this Agreement and the construction of the village parks and private neighborhood recreation areas as more specifically described in Exhibit "B." The Agreement for Dedication and Improvement of Park Sites described in Exhibit "C" shall remain in full force and effect except as modified by this Agreement. (3) Water Supply Conditions. With respect to all conditions and exactions pertaining to the provision of water to the Project, the City shall impose only the Amended Water Tank Facility Agreement described in Recital "G ", the requirements of Paragraph SE of this Agreement, the capital improvement fee, the Mid CJK /JWS128 r water meter hook -up fee and the conditions imposed by County Waterworks District No. 1, or any successor thereof, (the "Waterworks District "). (4) Flood Control Conditions. With respect to all conditions or exactions pertaining to flood control and storm run -off, the City shall impose only the construction of a retention basin in the West Village, storm drain designs with hydrology and hydrologic calculations performed to the satisfaction and approval of the City Engineer and consistent with the Standard Specifications as they are applied to similarly situated projects and the conditions imposed by the County Flood Control District. (5) School Conditions. With respect to all conditions and exactions pertaining to school enrollment impact of the Project, the City shall impose only the Developer's agreement to offer to the Moorpark Unified School District three (3) school sites described in Exhibit "B" consistent with Paragraph 2D of this Agreement and the requirement that the Developer pay a per housing unit impact fee pursuant to Section 8911 of the Codified Ordinances of the County, as adopted by City Ordinance No. 6, or any successor thereto. (6) Traffic Mitigation Conditions. With respect to all conditions and exactions pertaining to traffic mitigation measures within or near the Project, the City shall impose only the Developer's agreement contained in Paragraphs 1.A. through l.D, inclusive, of this Agreement. Nothing in this Agreement shall limit the City from requiring the Developer, at its sole cost, to place traffic signs and striping along or on the streets within, or adjacent to, the Project. D. Special Taxes. Nothing in this Agreement shall limit the City from levying special taxes, fees and assessments on any portion of the Property which is vested in the Developer, provided that (i) the Developer concurs in the terms and conditions of said levy; or (ii) the levy is imposed either on a city -wide basis or on any property or project that is similar to the Property or the Project. E. Utility Capacity. The City shall not deny any Land Use Approval or Construction Approval on grounds of insufficient sewer or water utility capacity if the Developer (i) prior to approval of the final maD, presents to the City an Unconditional Availability Letter from the Waterworks District or enters into a Subdivision Sewer/Water AgrEement with the City, which Agreement shall be in the form usually and customarily required by the City as of the date the Developer submits the final map to the Citv for approval and (ii) prior to the issuance of a zone clearance, presents to the City an Unconditional Will CJKi J�iS 1 28 -19- Serve letter from the Waterwork District or an alternative document approved in advance by the City. With respect to any other utility, the City will not deny the Land Use Approval or Construction Approval if the Developer demonstrates to the City's good faith satisfaction that sufficient capacity can be made available from any source or by any means whatsoever. Nothing in this Agreement shall permit the use of septic tanks. F. Air and Water Plans. The Project is consis- tent with the County's Air Quality Maintenance Plan and the Coun- ty's "208" Water Quality Management Plan (the "Air and Water Plans "). The City shall reserve sufficient population allocation under the Air and Water Plans to allow development of the Project. G. Applicability of Growth Management Controls. During the term of this Agreement, the City shall not apply to the Project any growth management control, phased growth procedure, air quality maintenance plan or limitation on utility services (collectively "Growth Management Control ") which the City Council has adopted by ordinance or resolution or which has been adopted by initiative. For purposes of this Agreement, "Growth Management Control" shall include any ordinance, resolution, regulation, policy or initiative which (i) limits the allocation to the Developer of building permits for less than 325 Equivalent Dwelling Units during any Development Year; (ii) places a moratorium on water, storm drain or sewer hook -ups so that the Developer is entitled to building permits for less than 325 Equivalent Dwelling Units during any Development Year; (iii) might be enacted or applied pursuant to any County - originated air quality or water quality maintenance plan; or (iv) otherwise prevents the Developer from obtaining the number of building permits described in Paragraph 4(1) of this Agreement at such times and in such sequences as the Developer may choose. However, the City may apply any such Growth Management Control where required by application of superior law, as more specifically set forth in Paragraph 5H of this Agreement. H. Application of Superior Law. In the event that state or federal laws or regulations enacted after the Effective Date of this Agreement prevents or precludes compliance with one or more provisions of this Agreement, such provisions shall be deemed modified or suspended as necessary to comply with such state or federal laws or regulations. 6. Term and Amendment of Agreement. A. Term. The term of this Agreement shall com- mence upon the Effective Date of this Agreement and shall termi- nate as of the twelfth anniversary of said Effective Date. -20- CJK/JWS128 B. Extension by Agreement. The City and the Developer may agree to extend the term of this Agreement by amending the Agreement in the manner specified in Municipal Code Section 9.64.120 or any successor thereto. C. Extension by Moratorium. A Moratorium shall be deemed to exist if the City allocates fewer than two hundred (200) building permits to the Developer in any Development Year. In the event of a Moratorium, all periods specified in this agreement, including but not limited to performance pursuant to Paragraph 1 of this Agreement and the term of this Agreement, shall be extended for each Development Year in which a moratorium exists pursuant to the following formula: number of building 325 - permits allocated in x 12 months = extension the Development Year 325 The extension shall be rounded to the nearest month. In no event shall this Agreement be extended for more than a total of five (5) years, regardless of the number of Development Years in which a Moratorium is deemed to exist. D. Amendment. The City and the Developer may amend this Agreement in the manner specified in Municipal Code Section 9.64.120, or any successor thereto. Review. 7. Annual Review, Termination, Default and Judicial A. Termination (1) By the City after Review. (a) The City shall review this Agreement (i) annually in accordance with Municipal Code Section 9.64.150, or any successor thereto; and (ii) at any time after the City has given the Developer notice that it has not in good faith per- formed any of its obligations under, or complied with any provi- sions of, this Agreement and the Developer has failed to cure such default within fifteen (15) days following said notice or, if incapable of being cured within fifteen (15) days, such time period as the City establishes. If, as a result of such review, the City finds and determines on the basis of substantial evidence that the Developer has not in good faith performed any of its obligations under, or complied with any provision of, this Agreement, then the City may amend or terminate this Agreement. This Agreement shall remain in full force and effect until after the hearing and decision required tinder Municipal Code Section 9.64.150 or any successor thereto. -21- CJK /JWS12a (b) If the City terminates this Agree- ment pursuant to this Paragraph 7A(1), then the Developer shall: (i) Provide the consideration set forth in Paragraphs 1E, 1F, 1H, 1I, 1J, 1K, 1L, 1M and 10 of this Agreement; (ii) Be entitled to restitution of any fees paid pursuant to Paragraph 1G of this Agreement for dwelling units for which no building permits have been issued as of the effective date of said termination or be required to pay fees pursuant to Paragraph 1G for dwelling units for which building permits have been issued prior to the effective date of said termination in excess of the number of building permits covered by any previously paid installment. Said restitution or payment shall be made within thirty (30) days after the effective date of said termination; (iii) Immediately rejoin the Area of Contribution (the "reentry date ") at which time it shall be credited with an amount equal to the cost of construction, as defined in the Area of Contribution Report as of the Effective Date of this Agreement, of whatever work was done pursuant to Paragraphs 1A, 1C and 1D prior to the reentry date. Within thirty (30) days of the reentry date, the Developer shall pay the amount of Area of Contribution fees corresponding to the number of building permits issued as of the reentry date, using the fees in effect at the time each building permit was issued, offset by the amount of the credit. If there is any additional credit left, it shall be offset against any required future Area of Contribution fees. In no event shall said credit include interest or be the basis for a cash refund or reimbursement; and (iv) Not be entitled to restitution for any other consideration described in Paragraph 1 of this Agreement. (2) At the Developer's Election. (a) At any time after the Developer's comple- tion of the acts described in Paragraphs 1A, 1B, 1C and 1D of this Agreement, the Developer may terminate this Agreement by giving the City fifteen (15) days prior written notice, in which event termination shall be effective on the fifteenth day without need for hearings of any type. (b) If the Developer terminates this Agreement pursuant to this Paragraph 7A(2), then the Developer shall: -22- CJK /JdS128 (i) Provide the consideration set forth in Paragraphs 1E, 1F, 1H, 1I, 1J, 1K, 1L, 1M and 10 of this Agreement; (ii) Be entitled to restitution of any fees paid pursuant to Paragraph 1G for dwelling units for which no building permits have been obtained as of the effective date of said termination or be required to pay fees pursuant to Paragraph 1G of this Agreement for dwelling units for which building permits have been issued prior to the effective date of said termination in excess of the number of building permits covered by any previously paid installment. Said restitution or payment shall be made within thirty (30) days after the effective date of said termination; (iii) Immediately rejoin the Area of Contribution (the "reentry date ") at which time it shall be credited with an amount equal to the cost of construction as defined in the Area of Contribution Report, as of the Effective Date of this Agreement, of whatever work was done pursuant to Paragraphs 1A, 1C and 1D prior to the reentry date. Within thirty (30) days of the reentry date, the Developer shall pay the amount of Area of Contribution fees corresponding to the number of building permits issued as of the reentry date, using the fees in effect at the time each building permit was issued, offset by the amount of the credit. If there is any additional credit left, it shall be offset against any required future Area of Contribution fees. In no event shall said credit include interest or be the basis for a cash refund or reimbursement; and (iv) Not be entitled to restitution for any other consideration described in Paragraph 1 of this Agreement. B. Default. (1) By the Developer. The Developer shall be in default under this Agreement if it has not in good faith performed any of its obligations under, or complied with any provision of, this Agreement. If the Developer is in default, the City may elect to proceed as provided in this Paragraph 7A(1) or as provided in Paragraph 7A(1) of this Agreement. If the City elects to proceed as provided herein, it shall give the Developer notice that it must cure its default within fifteen (15) days following notice thereof, or, if incapable of being cured within fifteen (15) days, within such time period as the City establishes. If the City elects to have the default cured pursuant to this Paragraph 7B and the Developer fails to cure the default as as provided herein, the Cit:v's sole remedv shai.l be an order of specific performance requiring the Developer to perform its obligations under this Agreement. -23- CJK /JWS128 (2) Default by the City. The City shall be in default under this Agreement if it has not in good faith performed any of its obligations under, or complied with any provision of, this Agreement and such failure is not cured within fifteen (15) days following notice thereof from the Developer, or if incapable of being cured within fifteen (15) days, within such time period as the Developer establishes. If the City is in default under this Agreement, the Developer's sole remedy shall be an order of specific performance requiring the City to perform its obligations under this Agreement. C. Judicial Invalidation. (1) If the final judgment of a court of competent jurisdiction determines that this Agreement is invalid, then neither the City nor the Developer shall have any further benefits or burdens hereunder as of the date the judgment becomes final, except as provided under Paragraph 7C(2). A judgment shall not be deemed "final" until all appellate review has been completed or the time for seeking appellate review has passed without any review having been sought. (2) If this Agreement is judicially invalidated, then the Developer shall: (a) Provide the consideration set forth in Paragraph lE of this Agreement; (b) Be entitled to restitution of any Fees paid pursuant to Paragraph 1G of this Agreement for dwelling units for which no building permits have been obtained as of the date of said judgment becomes final or be required to pay fees pursuant to Paragraph 1G for dwelling units for which building permits have been issued prior to the date said judgment becomes final in excess of the number of building permits covered by any previous payment. Said restitution or payment shall be made within thirty (30) days after said judgment becomes final; (c) Immediately rejoin the Area of Contribution (the "reentry date ") at which time it shall be credited with an amount equal to the cost of construction, as defined in the Area of Contribution Report as of the Effective Date of this Agreement, of whatever work was done pursuant to Paragraphs 1A, 1C and 1D prior to the reentry date. Within thirty (30) days of the reentry date, the Developer shall pay the amount of Area of Contribution fees corresponding to the number of building permits issued as of the reentry date, using the fees in effect at the time each building permit was issued, offset by the amount of the credit. If there is any additional credit left, it shall be offset against any required future Area of Contribution fees. In addition to the credit corresponding to -24- CJKIJWS128 the cost of construction, the City shall pay the Developer fifty percent (50 %) of the Area of Construction fees paid by other developers after the reentry date. Payments shall be offset against any remaining credit due to the Developer and shall cease when the credit is reduced to zero; and (d) Not be entitled to restitution for any other consideration described in Paragraph 1 of this Agree- ment. (3) If a final judgment of a court of competent jurisdiction determines that the City is prohibited from complying with any provision of this Agreement, then the Developer shall have the option of treating such prohibition as equivalent to judicial invalidation. Upon making such an elec- tion, the City and the Developer shall comply with the terms of this Paragraph 7C(2). If the Developer does not so elect, then it shall be bound by the terms of this Agreement. The Developer shall make its election, and give notice of its election to the City, within sixty (60) days after final judgment. D. Judicial Review. (1) Early Resolution. The City and the Developer desire a rapid and early resolution of any dispute between them which arises out of this Agreement. Therefore, it is agreed that the City and the Developer shall attempt to resolve their disputes first by discussion and negotiation, next by pursuing any customary City administrative remedy or procedure and, that failing, any dispute arising out of this Agreement, whether dealing with breach, interpretation, constitutionality, legality or otherwise, shall be brought and prosecuted in the Ventura County Superior Court by reference pursuant to the provisions of California Code of Civil Procedure Section 638. The referee shall sit as a judge pro tern pursuant to the provi- sions of the California Constitution, Article VI, Section 22. (2) Attorney's Fees. In any litigation arising from this Agreement, each party shall be responsible for its own costs, including attorneys fees, and not liable for the other party's. Notwithstanding the foregoing, if some person or entity other than the Developer initiates litigation regarding this Agreement, through a complaint, cross - complaint or otherwise, then the City, at its sole discretion, may tender its defense of said litigation to the Developer. If the Developer, at its sole discretion, elects to accept said tender, it shall bear all costs, including attornevs fees, in defending the City and shall pay any settlement or judgment against the City, without any richt to reimbursefilOnt from the City. -2.5- CJK /,JWS 128 (3) Nonperformance due to Court Order. Notwithstanding Paragraph 7B(2) of this Agreement, the City's failure to perform its obligations under this Agreement shall not constitute a default under this Agreement if the nonperformance is the result of a court order. The Developer's obligations under this Agreement shall be abated during the period of such court order. (4) Position of the City in Litigation. Notwithstanding Paragraph 7B(2) of this Agreement, the position taken by the City in any litigation brought by or against the City shall not constitute a default under this Agreement, irrespective of the fact that the City's position may be adverse to the Developer's rights under this Agreement. E. Declaratory Relief. (a) The City and the Developer each have the right to bring an action for declaratory relief with respect to any provision of this Agreement. (b) If, at any time, the City believes that there is any reason in fact or law which would justify its failure to comply with the terms of this Agreement, it shall institute an action for declaratory relief against the Developer. Notwithstanding any such belief, the City shall continue to fully perform under the terms of this Agreement until a final judgment has been rendered in a declaratory relief action and all appellate review has been completed or the time for seek- ing appellate review has passed without any review having been sought. Nothing in this Paragraph shall apply to the City's actions taken pursuant to Paragraph 7A(1) of this Agreement which shall be governed solely by that Paragraph. F. Remedies. The City and.the Developer have, with the advice of legal counsel, bargained for the limited remedies expressly set forth in this Agreement. The City and the Developer hereby waive any right they may otherwise have to obtain damages or any other remedy at law or in equity for breach of this Agreement. 8. Successors and Assigns. A. Application. The terms "Developer" and "City" as used in this Agreement shall include their successors, but not their assignees. B. Covenants and Conditions Running With the Land. This Agreement shall be deemed to contain covenants and conditions running with the land, to benefit and burden the Prop- erty, binding upon the City's and the Developer's successors. -26- CJK /JWS128 The real property of the City to be benefited by this Agreement shall be all that owned by the City. The owner, whether the Developer or an assignee of any portion of the Project for which a certificate of occupancy or equivalent document has been issued by the City, shall not be entitled to the benefits or be subject to the burdens of this Agreement as to said portion of the Property. C. City's Successors. The City's successors shall include any public agency or commission, assessment district or tax district of which the City is the governing body and in the event of any disincorporation, the County. D. Developer's Successors. All of the rights and obligations under this Agreement and the Land Use Entitlements may be transferred from the Developer to a Successor, provided that the Successor: (i) gives the City at least forty -five (45) days prior written notice of the transfer; (ii) causes the transfer to be recorded in the Official Records of the County and indexed in the grantor /grantee index; and (iii) gives the City a copy of said recordation. Upon the City's receipt of a copy of such recording and provided the prior notice was duly given to the City, the transfer shall be deemed to be effective and said Successor shall be recognized by the City as if it were the Developer and shall exercise all of the rights and shall perform all of the obligations in connection with this Agreement and the Developer shall be released from any further obligations and shall have no right to any further benefits under this Agreement. After the transfer has become effective and the Successor has posted substitute security in a form authorized by California Government Code Section 66499, the City shall release any security for performance of any obligation previously posted by the Developer pursuant to this Agreement or any Land Use Entitlement incorporated herein. E. Developer's Assigns. For the purposes of this Agreement, the term "Assignee" shall mean any owner, except a Successor, of any portion of the Property for which a certificate of occupancy or equivalent document has not been issued. The following shall govern the rights and duties of all Assignees of the Developer when they hold title to portions of the Property: (1) Benefits. Every Assignee shall be entitled to the benefits of this Agreement to carry out the Project as to that portion of the Property in accordance with the terms of Exhibit "B" and this Agreement.. (2) 0b1iga_tion_s. The Developer shall not assign any of its obligations under Paragraph 1 of this Agreement, but any Assignee shall he ot= herwise bound by this Agreei -iient The Developer may assign any of its obl i9ations und( -r -27- CJK /,JWS 1 28 any conditions of a Land Use Entitlement to the Assignee, provided that: (i) the obligation logically follows title to the portion of the Property conveyed; and (ii) an express assumption of such an obligation has been executed by the Assignee and delivered to the City. Within thirty (30) days after receipt of said express assumption and the posting of substitute security in a form authorized by California Government Code Section 66499 by the Assignee, the City shall release any security for performance of any assigned obligation posted by the Developer pursuant to a Land Use Entitlement incorporated herein. (3) Limitation of Rights of Assignees. No Assignee shall have any right to modify or terminate this Agree- ment or to bring any action at law or suit in equity against the City under this Agreement. (4) Default by Assignees. To the extent that any Assignee has not in good faith complied with any provision of this Agreement, such failure shall be deemed a failure by the Developer pursuant to Paragraphs 7A(1) and 7B(1) of this Agreement. Pursuant to said Paragraph 7A(1), the Developer and all Assignees shall have no further rights hereunder. 9. Notices. A. Method and Address. All notices or other com- munications required or permitted hereunder shall be in writing and shall be sufficiently given for all purposes when sent by first class United States mail, postage prepaid, registered or certified, or by an express air courier (such as, for example, Federal Express) when such courier shall maintain written verifi- cation of actual delivery, or by delivering the same in person. Such notices shall be addressed as follows: (1) If to the Developer., to UWC- Moorpark Investors, Ltd., 520 Broadway, Suite 100, Santa Monica, Cali- fornia 90401, Attention: Mr. Urban McLellan, (with a copy to Kenneth B. Bley, Esq., Cox, Castle & Nicholson, 2049 Century Park East, 28th Floor, Los Angeles, California 90067) or such other address as the Developer shall have furnished to the City in writing, or (2) If to the City, City of Moorpark, 799 Moorpark Avenue, Moorpark, California 93021, Attention: Mr. Steve Kueny, City Manager (with a copy to Cheryl J. Kane, Esq., Burke, Williams & Sorensen, 624 South Grand Avenue, 11th Floor, Los Angeles, California 90017) or at such other address as the City shall have furnished to the Developer in writing. B. When Given. Any notice so addressed and delivered shall be effective three business days following depos- -28- CJK /J,aS 1 28 it in the United States mail or with an express air carrier. Any notice so addressed and otherwise delivered shall be deemed to have been given when actually received by the addressee. 10. Rules of Construction; Miscellaneous. A. Recitals. The incorporated herein by reference. conclusive as between the parties incontestable in the event of any the Developer regarding such fact introduce any evidence in any jud proceeding which would in any way fact. Recitals set forth above are Each Recital of fact shall be hereto. Such facts shall be dispute between the City and and each party agrees not to icial or administrative serve to dispute such recited B. Headings. The headings of the paragraphs and subparagraphs of this Agreement are for convenience and reference only and shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of any provision of this Agreement. C. Exhibits. All exhibits referred to in this Agreement have been assembled in a separate document with an index identifying the contents acknowledged by the City's Director of Community Development and the Developer, two copies of which have been given each to the City and the Developer. All exhibits are hereby incorporated by reference into this Agree- ment. In the event of any conflict or inconsistency between this Agreement and any Exhibit or any Land Use Entitlement, the Agreement shall prevail. In the event of any conflict or inconsistency between Exhibit "B" and any other Exhibit, Exhibit "B" shall prevail. D. Land Use Entitlements. All of the Land Use Entitlements described in this Agreement, and all of those Land Use Entitlements approved by the City after the date hereof pur- suant to Paragraphs 2, 3, and 4 of this Agreement are incor- porated herein by reference. E. Governing Law. This Agreement and all of the Land Use Entitlements shall be governed by the laws of the State of California. F. Limitationof Reliance Upon City. The City has no obligation in connection with the construction of any improvements to the Property except to take such actions, or refrain from action, as covenanted and agreed to herein. Any inspection by the City of any improvement -s to the Property, review by the City c)f any plans and Knee; ficlitions, or ot_i;er similar activities by the City shall be for the sole and separate benefit of the City and ,ha?.1 in no way be construed as ,, repre- -29- CJK/J,aSI 28 sentation to the Developer that the construction of any improve- ments to the Property is free from faulty material or workmanship or that the construction is being completed in accordance with the plans and specifications on file with the City. The fact that the City makes any such inspection or review shall not relieve the Developer from its duty to independently ascertain that the improvements are being completed in accordance with the applicable plans and specifications, and the Developer shall have no right to rely on any procedures by the City. Both parties to this Agreement acknowledge that the City is not a joint venturer or partner of the Developer. G. Time of Essence. Time is of the essence of this Agreement. H. Duplicate Originals. Two or more duplicate originals of this Agreement may be signed by the parties, each of which shall be an original and all of which together shall con- stitute one and the same instrument. I. Advice of Legal Counsel. Each party and its counsel have cooperated in the drafting and preparation of this Agreement. This Agreement shall be deemed the parties' joint work product and except as otherwise provided in this Agreement, may not be construed against any party by reason of its preparation. J. Third Party Beneficiaries. Except as provided in this Agreement, no other person shall be deemed a third party beneficiary of this Agreement. K. Waiver. No waiver of any provision of this Agreement shall be deemed, or 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, 1unless executed in writing by the party making the waiver. L. Indemnification. The Developer shall indemnify, defend and hold harmless, the City and its officers, employees, servants and agents from any and all claims, actions, suits, proceedings, losses, liabilities, costs, expenses and obligations for damage whatsoever, including injury or death to any person and injury to any property, in any way connected with, related to, or arising from, any act or omission of the Developer or any of their officers, employees, servants, agents or contractors in the performance of any obligation pursuant to Paragraph 1 of this Agreement, except such damaae that is caused by the sole negligence of the City or its officers, employees, servants or agents. -30- CJKJJWS128 M. Covenants of Cooperation, Good Faith and Fair Dealing. The Developer and the City covenant and agree that each of their officers, employees, agents, contractors and other officials, whether elected or appointed, will act in good faith to comply with this Agreement, will deal fairly with each other, and will cooperate to insure that the Project may be developed in a timely, expeditious and cost - effective manner. N. Entire Agreement. This Agreement supersedes any and all other agreements, either oral or in writing, between the City and the Developer with respect to the subject matter hereof and contains all of the covenants and agreements between the parties with respect to said matter, and each party to this Agreement acknowledges that no representations, inducements, promises, or agreements, orally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding. Any oral representations or modifications concerning this Agreement shall be of no force or effect. IN WITNESS WHEREOF, cau ed this Agreement to be 1986. CITY OF MOORPARK By: wCl } Ma or, City of Moorpark y: the City and the Developer have executed as of this o?/ day of y Clerk, City of Moorpark APPROVED AS T FORM: 1� By City A to ney, City 3�1)6orpark UWC MOORPARK INVESTORS, LTD., a California limited partnership MI. A General Partner UWC Moorpark I �es� Ji. 13q'. tA09.A A.rJ QJR Ni.AJ� T �� STETc CAF- RiE g V n,�li.t� FAA ILi `i -Mot t9bZ APPROVED AS TU FORM: COY, CI=LE & NICHOLSON B y L,gal Counsel, UYC Moorpark I 61-ors, nv Ltd. -31- CJKjJ 6128