HomeMy WebLinkAboutAGENDA REPORT 2015 0617 CCSA REG ITEM 08B ITEM 8.B.
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
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MOORPARK CITY COUNCI4cTION: ,p,VII j tpj.
AGENDA REPORT aWo15- 3•
BY: trh. &LA —
TO: Honorable City Council
FROM: David C. Moe II, Economic Development and Housing Managerr
DATE: June 8, 2015 (City Council Meeting of 6/17/15)
SUBJECT: Consider Resolution Approving of Sale of Property Owned by the
City of Moorpark, Acting as the Successor Housing Agency, Located
at 782 Moorpark Avenue, 798 Moorpark Avenue, 81 Charles Street,
and 765 Walnut Street, to the Area Housing Authority of the County
of Ventura; Approving Disposition and Development Agreement and
Affordable Housing Agreement Between the City of Moorpark and
the Area Housing Authority of the County of Ventura; Providing a
Loan Commitment for a $1,830,000 Loan to Purchase the Land from
the City of Moorpark; and Providing a Loan Commitment for a
$2,000,000 Permanent Financing Loan.
BACKGROUND
•
The former Redevelopment Agency of the City of Moorpark ("Agency") assembled a 1.2
acre site, located at 782 Moorpark Avenue, 798 Moorpark Avenue, 81 Charles Street,
and 765 Walnut Street ("Property"), at a cost of $1,518,777.00 (includes relocation and
demolition expenses). The Agency has demolished a portion of the improvements on
site; however, the buildings along Moorpark Avenue have remained for visual aesthetics
and interim uses. An aerial of the Property is attached as Exhibit A.
With the elimination of redevelopment agencies in California, cities automatically
assumed the role as the housing successor agency to their redevelopment agency
unless they elected to not serve. The City of Moorpark ("City") assumed the housing
functions of the Agency and took control of the housing assets, excluding amounts in
the MRA Low/Mod Income Housing Fund, along with related rights, powers, liabilities,
duties and obligations thereby becoming a successor housing agency of the Agency.
On August 27, 2012, the Department of Finance approved the transfer of the houisng
assets to the City, which started the five (5) year requirement to develop the properties
for affordable housing purposes (August 27, 2017). The City is approaching the end of
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June 17, 2015
Page 2
year number three (3) on this requirement. One five (5) year extention is allowed to
develop the housing properties of the former Agency (August 27, 2022).
On May 16, 2012, the City Council adopted its 2008-2014 Housing Element Update.
Program No. 3 of this update was to create a zoning district that allows owner-occupied
and multi-family rental residential development by-right at a density of 20 units to the
acre. This program was necessary to meet the City's fair-share regional housing needs
for lower income households. As a result of this, on September 11, 2013, after public
hearings by the Planning Commission and City Council, the City Council adopted
ordinances creating the Residential Planned Development 20 Units to the Acre
(RPD2OU-N-D) zone and rezoning the Property, along with two other properties, to
RPD20U-N-D. As part of this process, the General Plan land use designation and
Downtown Specific Plan land use designation for this site were also both changed to
Very High Density Residential (VH). Neighbors were notified of this change by mail and
notices were published in the newspaper and posted on site.
The Zoning Ordinance Amendment established the Planned Development Permit
application process for the RPD2OU-N-D zone, designating the Planning Commission
as the approval authority, and creating required development standards and findings for
approval. The Planning Commission held a public meeting on the PD permit application
for this Property on May 26, 2015. The Planning Commission determined that the
project is in compliance with the development standards of the RPD2OU-N-D zone.
DISCUSSION
A Disposition and Development Agreement ("DDA") and Affordable Housing Agreement
with the Area Housing Authority of the County of Ventura ("Developer") has been
negotiated to allow construction of a twenty-four (24) unit, 100% affordable, for rent,
residential project, having a mixture of two (2) and three (3) bedroom units ("Project").
The Project consists of nineteen (19) 2-bedroom units and five (5) 3-bedroom units.
Each unit includes one (1) bathroom and a private balcony, patio, or small yard
(townhome units).
All of the units will be affordable to and rented by very-low and low-income households.
Of the twenty-four (24) units, five (5) will be restricted to lease at an affordable housing
cost to low-income households and nineteen (19) units will be restricted to lease at an
affordable housing cost to very-low income households. One (1) of the low-income two
(2) bedroom units will be utilized by a low-income onsite manager located above the
community room, which shall be a low-income unit under the DDA.
The Project includes a number of common amenities, including a tot lot, community
garden, passive open space, community room, common laundry room for the
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June 17, 2015
Page 3
apartments, and in-house laundry facilities in the townhomes. An elevator provides
access to the second and third floors of Building A.
The Project shall be constructed in accordance with the approved City of Moorpark
Planned Development Permit No. 2015-01, and all permits and fees required by the
City, County of Ventura, and other governmental agencies with jurisdiction over the
Project. The proposed site plan and elevation are attached as Exhibit B and Exhibit C,
respectively. The proposed Disposition and Development Agreement is attached as
Exhibit D.
The proposed sale price of the Property is $1,830,000.00, which was established by an
appraisal from Novogradac & Company LLP. In order to make the Project feasible and
maximize the ability to score high in the tax credit application process, staff is proposing
the City transfer the title of the Property to the Developer in exchange for a promissory
note secured with a deed of trust in the amount of $1,830,000.00 ("Purchase Loan").
Repayment of the Purchase Loan will be made from residual receipts (net operating
income generated from the project) and the term would be thirty (30) years. The
interest rate would be 2.25%. Staff is also recommending that the City provide a
$2,000,000.00 permanent financing loan ("Permanent Loan") from the City Affordable
Housing Fund (2201) to further maximize the Project's tax credit score and increase the
chances of receiving tax credit funding. The interest rate on the Permanent Loan would
be 3.75%. The Permanent Loan would also be repaid from residual receipts, but the
term would be fifteen (15) years. Both loans may be paid off sooner than their terms.
The Developer believes the Permanent Loan may be paid in full by year nine (9), but
the term needs to be fifteen (15) years to receive additional points to increase the tax
credit score for the Project. Staff recommends the City provide loan commitments to
the Developer for both the Purchase Loan and Permanent Loan. Approval of the loan
documents will occur after the developer can secure the tax credit financing.
The project has several layers of financing for the construction phase and permanent
financing:
Construction Phase:
Bank of America $7,800,000.00
City of Moorpark (Purchase loan) $1,830,000.00
Ventura County Housing
Trust Fund/Developer $ 500,000.00
Deferred Developer Fee $1,021,756.00
Tax Credits $1,146,578.00
Total: $12,298,334.00
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Permanent Financing:
City of Moorpark (Permanent Loan) $2,000,000.00 (Annual Payment$321,453.00 year 3*)
Ventura County Housing
Trust Fund/Developer $ 500,000.00 (Two annual payments)
City of Moorpark (Purchase Loan) $1,830,000.00 (Deferred)
AHA Development Fee $ 4,480.00 (Deferred)
Anticipated HOME Funding $ 200,000.00 (Deferred)
Tax Credits $7,643,854.00 (Equity)
Solar Energy Tax Credits $ 120,000.00 (Equity)
Total: $12,298,334.00
Payment to the Housing Trust Fund Loan expires in year 3, City will receive the Housing Trust Funding
payment once it has been retired. City estimated to receive $111,148.00 annually for year 1 and 2. City
estimated to receive $321,000 in year 3 increasing annually to $357,000 in year 8. Estimated remaining
balance to be paid to City in year 9 is$150,000
California Health and Safety Code Section 33433, requires that the legislative body
approve, by resolution and after a public hearing, any sale or lease of property which
was acquired with tax increment funds. Said resolution must also include the following
three findings:
1. The sale of property will assist in the elimination of blight
in the Moorpark Redevelopment Project Area.
2. The sale of property is consistent with the goals and
objectives in the 2010-2014 Implementation Plan for the
Moorpark Redevelopment Project pursuant to Section
33490 of the CCRL.
3. The property is being sold to the Developer at the fair
market price at the highest and best use in accordance
with the Moorpark Redevelopment Plan.
Therefore, since the Agency did acquire the Property with tax increment funds, the City
will need to approve the proposed sale and make the three required findings.
The Section 33433 Summary Report (Exhibit E) summarizes the Agency's cost
associated with the acquisition, holding and sale of the Property; states that the
Property is being sold for the fair market value; and describes how the sale of the
Property will assist with the elimination of blight and is consistent with the expired 2010-
2014 Five Year Implementation Plan for the Moorpark Redevelopment Plan.
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June 17, 2015
Page 5
FISCAL IMPACT
The Property was recently appraised by Novogradac & Company LLP, and is valued at
$1 ,830,000.00. The City will make a Purchase Loan to the Developer in the amount of
$1 ,830,000.00 and a $2,000,000.00 Permanent Loan. The interest on the loans is
2,25% and 3.75%, respectively. Payments will be made out of residual receipts.
Payment on the Purchase Loan will begin after the Permanent Loan has been retired.
The Developer anticipates repayment of the Permanent Loan in year nine (9) and
payments to the Purchase Loan beginning in year ten (10). No money will exchange
hands for the Purchase Loan. Funds needed for the Permanent Loan will come from
the City Affordable Housing Fund (2201), which is funded by in-lieu fees paid by
developers. The current balance for the City Affordable Housing Fund is
$4,076,811.08. The City expects to receive $2,300,000.00 from City Ventures within
twelve (12) months for the purchase of City owned property. These funds would
replace the money used for the Permanent Loan from the City Affordable Housing Fund
(2201).
STAFF RECOMMENDATION (ROLL CALL VOTE)
Adopt Resolution No. 2015 - approving the sale of Property to the Area Housing
Authority of the County of Ventura and making the three required findings required by
California Health and Safety Code Section 33433; approving Disposition and
Development Agreement and Affordable Housing Agreement between the City of
Moorpark and Area Housing Authority of the County of Ventura subject to final language
approval by the City Manager and City Attorney; and provide loan commitments to the
Area Housing Authority of the County of Ventura for both the Purchase Loan and
Permanent Financing subject to final language approval by City Manager and City
Attorney.
Exhibit A Aerial
Exhibit B Conceptual Site Plan
Exhibit C Conceptual Elevation
Exhibit D Disposition and Development Agreement
Exhibit E Section 33433 Summary Report
Exhibit F Resolution No. 2015 -
6
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' Area Housing Authority
: oithe County ofVentura ` LAUTEABACH U ASSOCIATES
EXHIBIT D
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
and When Recorded Mail to:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attn: Steven Kueny
City Manager
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DISPOSITION AND DEVELOPMENT AGREEMENT
by and between
CITY OF MOORPARK, as the successor to the housing assets of the
Redevelopment Agency of the City of Moorpark
and the
AREA HOUSING AUTHORITY OF THE COUNTY OF VENTURA,
a public body, corporate and politic
EVERETT STREET APARTMENT PROJECT
12
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ATTACHMENT LIST
Attachment No. 1 -- Site Plan
Attachment No. 2 -- Legal Description of the Site
Attachment No. 3 -- Schedule of Performance
Attachment No. 4 -- Form of Grant Deed
Attachment No. 5 -- Scope of Development
Attachment No. 6 -- Form of Certificate of Completion
Attachment No. 7 -- Form of Affordable Housing Agreement
Attachment No. 8 -- Ventura County Income Limits (2015)
Attachment No. 9 -- Forms of Promissory Note and Deed of Trust for City Purchase
Loan and Permanent Loan
13
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DISPOSITION AND DEVELOPMENT AGREEMENT
EVERETT STREET APARTMENT PROJECT
THIS DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is
dated as of , 2015, and is entered into by and between the CITY OF
MOORPARK, a public body, corporate and politic ("City"), and the AREA HOUSING
AUTHORITY OF THE COUNTY OF VENTURA, a public body corporate and politic
("Developer"). The City and the Developer are hereinafter sometimes individually
referred to as a "Party" and collectively referred to as the "Parties".
RECITALS
A. The purpose of this Agreement is to provide an affordable housing
development on certain real property described and defined herein as the "Site". The
project to be developed on the Site ("Project") is more particularly described in the
"Scope of Development" attached hereto as Attachment No. 5, and consists generally of
the construction of a residential apartment complex containing twenty-four (24) two
and three bedroom units. Five (5) of the units will be restricted to lease at an
"Affordable Housing Cost" to "Low" or "Lower Income Households", nineteen (19) of the
units will be restricted to lease at an "Affordable Housing Cost" to "Very Low Income
Households". One (1) of the low income units will be utilized by a low income onsite
manager. The manager unit will be considered an additional Low Income unit under
this Agreement.
B. On May 26, 2015, the City Planning Commission approved Planned
Development Permit No. 2015-01 ("PD") for the Project.
C. This Agreement is intended to set forth a comprehensive plan for the
disposition and development of the Site, including the processing, financing and
construction of the "Improvements" (as defined in Section 1.2 below) to be constructed
on the Site.
D. It is the intent of this Agreement that the Developer will form a limited
partnership with the entity that purchases the tax credits (presumed Bank of America)
prior to the construction of the Improvement and the limited partnership will become the
owner and operator of the Project.
NOW THEREFORE, the City and the Developer hereby agree as follows:
ARTICLE 1. PURPOSE OF AGREEMENT; DEFINITIONS.
1.1 Purpose of Agreement.
1.1.1 This Agreement is entered into by the City pursuant to its authority
under the California Health and Safety Code authorizing the acquisition and
development of property for the purpose of providing residential units available at an
affordable housing cost to low income households. In connection with the foregoing,
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this Agreement sets forth controls and restrictions, running with the land, as necessary
to ensure that the "Units" will be restricted to that use for the period set forth in this
Agreement.
The City has determined that the sale of the Site to Developer for the
construction of the Project on the Site will provided needed affordable housing units in
the City. This Agreement is entered into for the purpose of facilitating the expeditious
development of the Site for housing purposes and is intentionally structured to deter
speculation in land holding.
1.1.2 The development of the Site pursuant to this Agreement, and the
fulfillment generally of this Agreement, are in the vital and best interests of the City (as
defined in Section 1.2 below), and will promote the health, safety, and welfare of its
residents. This Agreement is in accordance with the public purposes and provisions of
applicable federal, state, and local laws and requirements.
1.2 Definitions.
In addition to other terms defined elsewhere in this Agreement, the
following terms as used in this Agreement shall have the meanings given below unless
expressly provided to the contrary:
"Affiliate" shall mean any "Person" (as defined below) directly or
indirectly, through one or more intermediaries, controlling, controlled by or under
common control with another Person. The term "control", as used in the immediately
preceding sentence, means the possession, directly or indirectly, of the power to direct
or cause the direction of the management or policies of the controlled Person. Without
limiting the generality of the foregoing, limited partnerships or other legal entities
created for the purpose of taking title or an ownership interest in the Site, as part of tax
credit or other financing, shall be "Affiliates" hereunder (sometimes referred to as
"Financing Affiliate").
"Affordable Rent" shall mean rent plus a reasonable utility allowance as
defined in California Health and Safety Code Section 33334.2 and 50052.5, which
currently is:
A. For a very low income tenant, thirty percent (30%) times fifty (50%)
percent of the County Median Income adjusted for family size appropriate for the Unit;
and
B. For a low income tenant, thirty percent (30%) times sixty (60%) of
the County Median Income adjusted for family size appropriate for the unit.
For the purposes of calculating the Affordable Rent, the term "adjusted for family
size appropriate to the Unit" shall mean a household of 3 persons in the case of a two
bedroom unit and 4 persons in the case of a three bedroom unit. In the event that
requirements or practices of the California Tax Credit Allocation Committee, or other
entity or entities similarly associated with anticipated financing of the construction of this
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Project, or future prudent refinancing of this project, utilizes definitions, sources of
information, or statues other than those which have been referenced herein and utilized
in calculating Affordable Rent, then the definition, source of information or statute which
produces the lowest affordable rents will be used to calculate the Affordable Rent.
"City" shall mean the City of Moorpark, a municipal corporation, organized
and existing under the laws of the State of California, and having its office at 799
Moorpark Avenue, City of Moorpark, California 93021, and all successors and assigns
of the City of Moorpark.
"Closing Date" shall mean the date that is ten (10) days after the date the
Conditions Precedent set forth in Sections 5.2.1 and 5.2.2 (other than the conditions on
the delivery of documents and funds into Escrow, which shall occur during said 10 day
period) are satisfied, or are waived by the benefited party, but in no event later than
December 31, 2016, as such date may be extended pursuant to Section 9.17 below.
"Effective Date" shall mean the date that this Agreement is fully executed,
which date shall be inserted into the preamble of this Agreement.
"Encumbrance" as used herein shall mean and include any mortgage,
trust deed, encumbrance, financing conveyance and all other appropriate modes of
financing real estate construction and development, including a sale and lease-back.
"Environmental Laws" means any federal, state or local law, statute,
ordinance, or regulation pertaining to environmental regulation, contamination or
cleanup of any Hazardous Materials, including, without limitation, (i) Sections 25115,
25117, 25122.7 or 25140 of the California Health and Safety Code, Division 20, Chapter
6.5 (Hazardous Waste Control Law)), (ii) Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) Section 25281 of the California Health and Safety Code, Division 20,
Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or Article
11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section
311 of the Clean Water Act (33 U.S.C. §1317), (vii) Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901) (42 U.S.C. §6903), (viii) Section 101
of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. §9601 et seq.
"Governmental Restrictions" as used herein shall mean and include any
and all laws, statutes, ordinances, code's, rules, regulations or other authorizations,
restrictions or requirements of any governmental entity, City or political subdivision. The
term "Applicable Governmental Restrictions" shall mean and include all Governmental
Restrictions applicable to the Site which are then in effect.
"Hazardous Materials" means any substance, material, or waste which is
regulated by any local governmental authority, the State of California, or the United
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States Government, including, but not limited to, any material or substance which is (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous
waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section 25140 of
the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste
Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of the
California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner
Hazardous Substance Account Act), (iii) defined as a "hazardous material," "hazardous
substance," or "hazardous waste" under Section 25501 of the California Health and
Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans
and Inventory), (iv) defined as a "hazardous substance" under Section 25281 of the
California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of
Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii) polychlorinated
byphenyls, (viii) listed under Article 9 or defined as "hazardous" or "extremely
hazardous" pursuant to Article 11 of Title 22 of the California Administrative Code,
Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to Section
311 of the Clean Water Act (33 U.S.C. § 1317), (x) defined as a "hazardous waste"
pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42 U.S.C.
§6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation, and
Liability Act, 42 U.S.C. §9601 et seq.
"Improvements" shall mean and include all buildings, structures, fixtures,
foundations, excavation, parking, landscaping, underground installations, and other
work, construction, alterations and improvements of whatsoever character required to
be undertaken or constructed on, off, under, or upon the Site by Developer pursuant to
this Agreement. The Improvements shall include the grading of the Site and the
development of a twenty unit 100% affordable residential project on the Site, including •
parking, landscaping, lighting, signage, and other amenities.
"Income Restrictions" Shall mean the following:
A. Low income tenants or lower income tenants shall mean and be
deemed to include any tenant whose annual household income does not exceed the
income limit for low or lower income tenants for Ventura County, adjusted for applicable
household size, as computed in accordance with the Health and Safety Code.
B. Very low income tenants shall mean and be deemed to include any
tenant whose annual household income does not exceed the income limit for
very low income tenants for Ventura County, adjusted for applicable household
size, as computed in accordance with the Health and Safety Code.
"Life of Project" Shall mean the period of time the Site is used for the
Project in accordance with this Agreement and City approved Residential Planned
Development, but in no event less than 55 years.
"Median Income" shall mean the Ventura County area median income,
adjusted for family size, as established by the California Department of Housing and
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Community Development. The initial applicable income limits are set forth in
Attachment No. 8.
"Person" shall mean an individual, corporation, limited liability company,
partnership, joint venture, association, firm, joint stock company, trust, unincorporated
association or other entity.
"Qualified Renter" shall mean, with respect to the Units, tenants who
satisfy the following requirements:
Developer has determined the person(s)' adjusted gross income, as
shown either on federal income tax returns for the full calendar year immediately
preceding the calendar year in which the prospective person(s) seeks to rent a Unit or
as shown by the payroll records or checks establishing their then current income,
including reasonably anticipated income, or as otherwise established to the Developer's
reasonable satisfaction, does not exceed the income restriction level applicable to the
Unit at issue.
"Representatives" as used herein shall mean the agents, employees,
members, independent contractors, affiliates, principals, shareholders, commissioners,
officers, directors, council members, board members, committee members, and
planning and other commissioners of the referenced entity.
"Residual Receipts" Any cash generated from the Project remaining
after:
(a) The payment of:
(i) All sums due or required to be paid under the terms of the Basic
Documents;
(ii) All amounts required to be deposited to the reserve fund for
replacements;
(iii) All obligations of the Project, including but not by way of limitation, all
the costs and expenses of maintenance and operation and all
amounts paid for taxes, assessments, insurance premiums and
other similar charges; and
(b) The segregation of:
(i) An amount equal to the aggregate of all special funds, if any,
required to be maintained by the Project; and,
(ii) All Tenant Security Deposits held.
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"Unit" shall mean and refer to an individual restricted residential apartment
unit constructed on the Site pursuant to this Agreement. "Units" shall mean and refer
collectively to all such residential dwelling units constructed on the Site.
"Site" shall mean that certain real property to be developed by Developer
pursuant to this Agreement, which property is shown on the Site Plan attached hereto
as Attachment No. 1 and more particularly described in the "Legal Description"
attached hereto as Attachment No. 2.
"Schedule of Performance" means the Schedule of Performance
attached hereto as Attachment No. 3 and incorporated herein, setting out the dates
and/or time periods by which certain obligations set forth in.this Agreement must be
accomplished. The Schedule of Performance is: (a) subject to revision from time to time
as mutually agreed upon in writing between the Developer and the City's City Manager
is authorized to make such revisions as he or she deems reasonably necessary; and (b)
subject to the provisions of Section 9.15.
"Scope of Development" means the Scope of Development attached
hereto as Attachment No. 5.
"Transfer" as used herein shall mean and include any conveyance,
transfer, sale, assignment, lease, sublease, , hypothecation, mortgage, pledge,
encumbrance, or the like. "Transferee" shall mean and refer to the person or entity
receiving any Transfer.
ARTICLE 2. PARTIES TO THE AGREEMENT.
2.1 City.
City shall mean the City of Moorpark, a public body, corporate and politic, and
having its office at 799 Moorpark Avenue, City of Moorpark, California 93021, arid all
assignees of or successors in interest to the City's general rights, powers and
responsibilities by operation of law or as otherwise authorized by this Agreement.
2.2 Developer.
Developer shall mean the Area Housing Authority of Ventura County, a public
body, corporate and politic, and its successors and assigns, and has its principal place
of business located at 1400 W. Hillcrest Drive, Newbury Park, California 91320.
2.3 Restrictions on Transfer.
The restrictions contained in this Section 2.3 upon any Transfer to any
Transferee are imposed because the qualifications and identity of Developer are of
particular concern to the City, and it is because of those qualifications and identity that
the City has entered into this Agreement with Developer. Except as permitted herein,
-8- 19
Developer shall not Transfer all or any part of its interest in or rights under this
Agreement, and/or any part of its interest in or rights to the Site and/or any of the
Improvements constructed thereon, without the prior written approval of City. City':s
approval shall be granted or withheld in City's discretion, but shall not be unreasonably
withheld, delayed or conditioned. Following a Transfer pursuant to this Agreement with
City consent and the written assumption by the Transferee of the obligations
Transferred, the Transferor shall be released from any further liability thereafter arising
with respect to the obligations Transferred.
At any time Developer desires to effect a Transfer requiring the consent of
City under this Agreement, Developer shall, except as expressly provided below in this
Section 2.3, request consent from the City in writing and shall submit to City any
proposed agreement evidencing the proposed Transfer (collectively, the "Transfer
Documents"). City agrees to notify Developer in writing of its decision with respect to
Developer's request for consent to such Transfer, as promptly as possible, and, in any
event, not later than thirty (30) days after City receives the Developer's written request
for consent to the transfer and the Transfer Documents; provided, that, if City requires
additional time, it may unilaterally extend the approval or disapproval of such Transfer
for up to an additional thirty (30) days by providing written notice to Developer of such
required extension within the initial thirty (30) day period.
ARTICLE 3. DEPOSIT AND PURCHASE PRICE PAYMENT.
3.1 Developer's Deposit.
3.1.1 Amount of Deposit
Prior to or concurrent with the execution of this Agreement by City,
Developer shall deliver to Escrow Agent a cash deposit in the amount of Five
Thousand Dollars ($5,000.00) ("Developer's Deposit"). The Developer's Deposit shall
be held and applied in accordance with the terms hereinafter set forth.
3.1.2 Disposition of Developer's Deposit
3.1.2.1 Concurrently with the Close of Escrow (as defined in
Section 5.3.2 below) the Developer's Deposit shall be returned to Developer. Upon a
termination of this Agreement by the City as a result of the Developer's Uncured Default
hereunder, the Developer's Deposit, and all interest accrued thereon, if any, shall be
retained by the City as provided in Section 8.5.2 below. Upon the termination of this
Agreement because of City's Uncured Default or the failure of a condition to closing, or
for any other reason (other than Developer's Uncured Default), the Developer shall be
entitled to the prompt return of the Developer's Deposit, together with the interest, if
any, that may have accrued thereon. The Escrow Agent shall deposit the Developer's
Deposit in an interest-bearing account, and as interest accrues or becomes payable
thereon, such interest shall be added to and become part of the Developer's Deposit.
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3.1.3 Deposit for Affordable Housing Agreement Preparation
Prior to or concurrent with the execution of this Agreement by City,
Developer shall deposit with the City $5,000.00 to pay City's direct costs for preparation
and review of an Affordable Housing Agreement and an Affordable Housing
Implementation and Rental Restriction Plan. Developer's cost for City to prepare said
documents shall not exceed $5,000.00. Developer acknowledges that this deposit is in
addition to the Developer's Deposit discussed in 3.1.1.
3.2 Purchase Price
The purchase price which City agrees to accept and Developer agrees to pay for
the Site is the sum of One Million Eight Hundred Thirty Thousand and No/100 Dollars
($1,830,000.00) ("Purchase Price")
ARTICLE 4. STATUS OF THE SITE.
City is the owner of record of all of the parcels comprising the Site. The Site will
be conveyed to the Developer in its current "As Is" condition without representation or
warranty, express or implied.
ARTICLE 5. DISPOSITION OF THE SITE.
5.1 Disposition of Site.
Subject to the terms and conditions set forth herein, the City agrees to transfer
the Site to the Developer and the Developer agrees to accept the Site from the City for
development in accordance with the terms of this Agreement (the "Conveyance").
5.1.1 Timeline to Secure Financing.
Developer shall have two (2) Tax Credit Allocation Committee
funding rounds to secure tax credit financing for the Project. If tax credits have not been
secured within two (2) consective funding rounds or July 31, 2016, whichever occurs
first, the City may, at its sole discretion, terminate this Agreement.
5.2 Conditions to Conveyance of Site.
5.2.1 City's Conditions to Conveyance of Site.
In addition to any other requirements and conditions imposed by this
Agreement, the Parties acknowledge and agree that, as a condition precedent to the
City's obligation to convey the Site to Developer, the following general conditions
(collectively, the "Conditions Precedent") must be satisfied (or waived by the City in
writing):
(i) no Uncured Default (as defined in Section 8.2 below) of
Developer shall then exist;
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(ii) the evidence of financing required by Section 6.2.3.1, 6.4.1,
and 6.4.2 shall have been submitted to and approved by the
City;
(iii) the Construction Contract shall have been submitted to and
approved by City as provided in Section 6.2.3.2 below;
(iv) this Agreement shall not have been terminated and shall be
in full force and effect;
(v) the Lot Line Adjustment (as defined in Section 6.2.4 below),
shall have been duly approved in accordance with all
Applicable Governmental Restrictions;
(vi) the Developer shall have obtained all entitlements and land
use approvals necessary to develop the Site in the manner
contemplated by this Agreement (which shall be final and not
subject to further appeal), Developer shall have submitted to
the City all building plans for the development necessary to
the issuance of building permits which shall have been
accepted by the City as complete and approved by the City,
and grading permits shall be ready to be issued concurrent
with the Closing upon payment of all requisite fees;
(vii) no litigation, administrative or adjudicative proceeding,
including, without limitation, an application for writ of
mandate, shall have been filed which seeks to challenge or
enjoin the Project or the transactions contemplated by this
Agreement, or to obtain damages in connection therewith,
or, if timely filed, such action shall have been finally
concluded or terminated in a manner reasonably satisfactory
to City;
(viii) the "Construction Loan" (as defined in Section 6.2.3.1
below) to be secured by Developer in connection with the
development of the Site, including bonds, permanent loan
commitments, tax credits, HOME funds, grants and other
means of constructions and credit facilities, shall have
closed/recorded or shall do so concurrently with the Close of
Escrow;
(ix) the Developer shall have provided proof of insurance in
accordance with the requirements of Section 6.5 of this
Agreement;
(x) Developer shall have executed and delivered to escrow a
promissory note in the form attached hereto as Attachment
No. 9 (for delivery to City) and deed of trust securing said
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promissory note, in the form attached hereto as Attachment
No. 9 ("City Deed of Trust") and an Affordable Housing
Agreement in the form attached hereto as Attachment No. 7
shall have been executed by Developer, acknowledged, and
delivered to escrow for recording at the Close of Escrow.
5.2.2 Developer's Conditions to Acceptance.
In addition to any other requirements and conditions imposed by this
Agreement, the Parties acknowledge and agree that, as a condition precedent to the
Closing, and to Developer's obligation to accept conveyance of the Site from City, the
following general conditions (collectively, the "Conditions Precedent") must be
satisfied (or waived by the Developer in writing):
(i) no Uncured Default (as defined in Section 8.2 below) of City
shall then exist;
(ii) Developer shall have obtained financing for the project,
which may be in the form of construction loan, permanent
loan commitments, bonds, tax credits, HOME funds, grants
and other means of constructions and credit facilities
described in Section 6.2.3.1 below, and Developer's
evidence of financing and the Construction Contract shall
have been approved by the City as required by Sections
6.2.3.1 and 6.2.3.2 below;
(iii) this Agreement shall not have been terminated and shall be
in full force and effect;
(iv) [the Lot Line Adjustment shall have been duly approved in
accordance with all Applicable Governmental Restrictions;]
(v) the Developer shall have obtained all entitlements and land
use approvals necessary to develop the Site in the manner
contemplated by this Agreement (which shall be final and not
subject to further appeal), the City shall have accepted as
complete all building plans for the development necessary to
the issuance of building permits, and grading permits shall
be ready to be issued by the City concurrent with the Closing
upon payment of all requisite fees;
(vi) no litigation, administrative or adjudicative proceeding,
including, without limitation, an application for writ of
mandate, shall have been filed which seeks to challenge or
enjoin the Project or the transactions contemplated by this
Agreement, or to obtain damages in connection therewith,
or, if timely filed, such action shall have been finally
_12_ 23
concluded or terminated in a manner reasonably satisfactory
to Developer;
(vii) the City shall have executed the Grant Deed and any other
documents required hereunder, and delivered such
documents into Escrow;
(viii) this Agreement shall not have terminated pursuant to
Section 5.3.3 hereof and Developer shall have approved its
due diligence review of the Site pursuant to Section 5.5,
including, without limitation, approval of its environmental
review of the Site and all studies, reports and assessments
concerning the environmental condition of the Site;
(ix) the Title Company shall, upon payment of Title Company's
regularly scheduled premium, have agreed to provide to the
Developer the Title Policy for the Site upon the Close of
Escrow, in accordance with Section 5.3.3 hereof;
(x) the Developer's Construction Loan shall be ready and in a
condition to close and fund concurrently with the Close of
Escrow, and Developer shall have obtained a commitment
for permanent financing on terms satisfactory to it and City;
and
(xi) the Site shall be delivered to Developer in As Is Condition
as provided in Article 4 above, and any remediation work
required under Section 5.7(a) or (b) below with respect to
Hazardous Materials discovered prior to the Close of Escrow
shall have been completed and a "_`No Further Action"_' letter
or other closing letter reasonably satisfactory to Developer
shall have been issued by the environmental agency with
jurisdiction over the subject assessment and cleanup.
5.3 Escrow.
5.3.1 General Provisions.
5.3.1.1 Within ten (10) business days after the Effective Date, City
agrees to open an escrow (the "Escrow") for the Conveyance with First American Title
Insurance Company ("Title Company"), or with another escrow company or escrow
department of a title insurance company selected by the Developer and reasonably
acceptable to City (the "Escrow Agent"). This Agreement shall constitute the joint
escrow instructions of City and Developer with respect to the Conveyance of the Site.
5.3.1.2 City and Developer shall provide such additional escrow
instructions as shall be necessary and consistent with this Agreement. The Escrow
Agent hereby is empowered to act under this Agreement and, upon indicating its
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acceptance of the provisions of this Section 5.3 in writing, shall carry out its duties as
Escrow Agent hereunder.
5.3.1.3 Upon delivery to the Escrow Agent by City and Developer
of the "Grant Deed" (which is attached hereto as Attachment No. 4 and incorporated
herein) and satisfaction (or waiver) of the other conditions to the Close of Escrow, the
Escrow Agent shall record the Grant Deed, the City Deed of Trust and the Affordable
Housing Agreement (as well as the deed of trust for the Construction Loan and any
subordination agreement executed by City and the construction lender, and any tax
credit affordable housing agreements) and proceed with the Closing. In connection with
the Conveyance, the Escrow Agent shall pay the transfer tax, if any, required by law
using funds provided by City pursuant to Section 5.3.1.4 below. Any insurance policies
of City governing the Site are not to be transferred.
5.3.1.4 Promptly after Escrow Agent's notification to Developer of
the amount of such fees, charges and costs, and, in any event, not less than one (1)
business day prior to the scheduled date for delivery of the Conveyance, Developer
shall each pay into escrow and ultimately be liable for all of the escrow fees, charges
and costs. The City shall pay state, county, city or other documentary transfer taxes, if
any, applicable to the Conveyance. The Developer shall be responsible for the
premium of the title policy described in Section 5.3.3 attributable to CLTA standard
owners coverage. Promptly after Escrow Agent's notification to Developer of the
amount of such fees, charges and costs, and, in any event, not less than one (1)
business day prior to the scheduled date for delivery of the Conveyance, Developer
shall pay into escrow the difference in premium between a CLTA standard owner's
policy and an ALTA extended owner's policy, and anyendorsements to the title policy
requested by Developer.
5.3.1.5 The Escrow Agent is authorized to: (i) pay, and charge
Developer for, any fees, charges and costs payable under this Section of this
Agreement; (ii) disburse funds and deliver the Grant Deed and other documents to the
Parties entitled thereto when the conditions of the Escrow have been fulfilled by City
and Developer; and (iii) record any instruments delivered through the escrow if
necessary or proper to vest title in the Developer in accordance with the terms and
provisions of this Agreement.
5.3.1.6 Subject to satisfaction (or waiver) of all Conditions
Precedent, the Escrow shall Close (as defined in Section 5.3.2 below) no later than the
Closing Date. If Escrow is not in condition to close by the Closing Date, then any party,
not then in default of its obligations hereunder, shall have the right to demand the return
of money or property and terminate this Agreement. If either party makes a written
demand for return of documents or property, this Agreement shall not terminate until
five (5) days after Escrow Agent shall have delivered copies of such demand to all other
parties at the respective addresses shown in this Agreement. If any objections are
raised within said five (5) day period, Escrow Agent is authorized to hold all papers and
documents until instructed by a court of competent jurisdiction or by mutual written
instructions of the parties. Developer, however, shall have the sole option to withdraw
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any money deposited by it for the acquisition of the Site less Developer's share of costs
of Escrow. Termination of this Agreement shall be without prejudice as to whatever
legal rights either party may have against the other arising from this Agreement. If no
demands are made, the Escrow Agent shall proceed with the Closing as soon as
possible.
5.3.1.7 Any amendment to the escrow instructions set forth in this
Agreement shall be in writing and signed by both the City and the Developer. At the
time of any amendment the Escrow Agent shall agree to carry out its duties as Escrow
Agent under such amendment. Failure to object in writing shall be deemed Escrow
Agent's agreement to carry out its duties under such amendment.
5.3.1.8 All communications from the Escrow Agent to City or
Developer shall be directed to the addresses and delivered in the manner established in
this Agreement for notices, demands and communications between City and Developer.
5.3.2 Form of Deed for the Conveyance; Recordation of Documents.
The City shall convey to the Developer title to the Site by a Grant Deed in
the form of the Grant Deed attached hereto as Attachment No. 4. After the Close of
Escrow, the Escrow Agent shall deliver or cause to be delivered to Developer a title
insurance policy insuring title in conformity with this Agreement simultaneously with
delivery to City and to Developer of conformed copies of the recorded Grant Deed. At
the Closing, the Grant Deed (and the other documents described in Section 5.3.1.3)
shall be recorded in the land recorder's office of the County Recorder for Ventura
County. The Escrow shall be deemed to "Close" and "Close of Escrow" shall be
deemed to have occurred upon said recordation of such documents.
5.3.3 Title Insurance; Title Review.
Within five (5) days after the Effective Date of this Agreement, the Title
Company shall deliver to Developer a preliminary report for the Site showing all title
exceptions applicable thereto, a copy of all underlying documents referenced in such
title commitment, and a plot of all easements, if any, applicable to the Site (the
foregoing is referred to herein as the "Title Commitment"). No later than the date that
is twenty-five (25) days after the Effective Date ("Title Due Diligence Date"), Developer
shall notify City in writing ("Title Objection Notice") of any objections Developer may
have to the title exceptions contained in the Title Commitment. In the event Developer
fails to deliver the Title Objection Notice by the Title Due Diligence Date, Developer
shall be deemed to have disapproved all such exceptions encumbering the Property. In
the event Developer delivers a Title Objection Notice by the Title Due Diligence Date
disapproving any exceptions in the Title Commitment or is deemed to have disapproved
such exceptions, City shall have seven (7) days from receipt of Developer's Title
Objection Notice or deemed disapproval to notify Developer in writing ("Title Response
Notice") of City's election to either (i) agree to remove or cure the objectionable items
prior to the Close of Escrow, or (ii) decline to remove or cure the objectionable items
and terminate this Agreement. City's failure to deliver a Title Response Notice shall be
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deemed City's election to terminate this Agreement. If City notifies Developer of City's
election to terminate this Agreement rather than remove and cure the objectionable
items or City is deemed to have made that election, Developer shall have the right, by
written notice delivered to City no later than the date that is five (5) days after receipt of
City's Title Response Notice, or twelve (12) days after delivery of Developer's Title
Objection Notice if City does not deliver a Title Response Notice, to agree to accept the
Site subject to the objectionable items, in which event City's election to terminate this
Agreement shall be of no effect, and Developer shall take title at the Cloth of Escrow
subject to such objectionable items without any adjustment to or credit against the
Purchase Price. The exceptions to title that Developer approves pursuant to this
Section 5.3.3 shall be referred to herein as the "Permitted Exceptions." The Permitted
Exceptions shall also include the standard printed exceptions and exclusions contained
in the form of the Title Policy approved by Developer, non-delinquent real property taxes
(which shall be prorated as of the Closing as set forth in Section 5.4), and the
documents to be recorded through the Escrow under this Agreement.
Nothing in this Agreement shall obligate Developer to proceed with the
Close of Escrow in the event new liens or encumbrances on the Site (other than the Lot
Line Adjustment and other matters contemplated by this Agreement) are discovered or
arise through no fault of Developer after the date of the Title Commitment and any such
additional matters shall be removed by the City at the City's sole cost and expense.
Concurrently with recordation of the Grant Deed, Title Company shall
provide and deliver to Developer an ALTA Extended Coverage Owner's Policy of title
insurance (Form 1970-B) ("ALTA Policy") with a policy coverage limit in the amount of
the Purchase Price. The ALTA Policy shall show title to the Site vested in Developer.
Such title policy shall be subject to the Title Company's standard terms, conditions and
exceptions and the other Permitted Exceptions described above. The Title Company
shall provide the City with a copy of the ALTA Policy. In the event the Title Company
requires an ALTA survey as a condition to issuance of the ALTA Policy or as a condition
to elimination of any survey exception shown therein, Developer shall provide such
ALTA survey at its sole cost and expense or accept title subject to such limitation in or
exception to the Title Policy.
Notwithstanding anything above which is or appears to be to the contrary,
Developer shall have the right to require issuance of any endorsements to the ALTA
Policy which it may desire as a condition to the Close of Escrow; provided that all
expense or cost attributable to issuance of any such endorsement shall be the sole
responsibility of Developer.
City shall not cause or consent to the recordation of any additional liens,
encumbrances, covenants, conditions, restrictions, easements, rights of way or similar
matters against the Site after the Effective Date which will not be eliminated prior to the
Close of Escrow.
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5.4 Property Taxes and Assessments.
Ad valorem taxes and assessments, if any, levied, assessed or imposed on the
Site, which apply to any period prior to Conveyance of title to the Developer, shall be
borne by the City; ad valorem taxes and assessments, if any, levied, assessed or
imposed on the Site, which apply to the period after the Conveyance, shall be borne by
the Developer. Escrow Agent shall prorate all such taxes and assessments as of the
Close of Escrow based upon the most recent tax bills then available. All supplemental,
escape or corrected taxes and assessments thereafter arising with respect to the Site
shall be prorated by City and Developer outside of Escrow as of the Closing Date.
5.5 Site Conditions; Completion of Due Diligence; City Representations and
Warranties; City Covenants.
5,5.1 Delivery of Due Diligence Materials.
Within five (5) days after the Effective Date, City shall deliver to Developer
copies of all surveys, soils, seismic, geological, drainage, Hazardous Material,
compaction, environmental site assessments or studies and similar type reports, data,
investigations, or studies for the Site and the grading improvements thereon which are
in City's possession or control ("Due Diligence Materials"). City has not made any
independent investigation or verification of such information and, except as expressly
set forth in this Agreement, makes no representations as to the accuracy or
completeness of such information. If this Agreement is terminated for any reason,
Developer shall return to City the Due Diligence Materials delivered to Developer, and
all copies of the Due Diligence Materials, within ten (10) days after termination hereof.
The provisions of this Section shall survive any termination of this Agreement and the
Close of Escrow.
5.5.2 Right of Entry; Developer's Property Inspections.
City shall permit Developer and Developer's agents, contractors,
consultants, and employees to enter onto the Site prior to the Closing for purposes of
examining, inspecting, sampling, studying and investigating the Site, including the soil,
subsurface soils, drainage, seismic and other geological and topographical matters, the
existence, extent or nature of any Hazardous Materials on, under, in or about the Site,
and any other matters relating to the Site or its contemplated development, including
Phase I and/or Phase II site inspections and soil sampling. As a condition to any such
entry, inspection, testing or investigation Developer shall (i) prior to each phase, notify
City of the date and purpose of the intended entry; (ii) conduct all studies in a diligent
and expeditious manner; (iii) comply with all applicable laws and governmental
regulations; (iv) keep the Site free and clear of all materialmen's, mechanics' and other
liens arising out of the entry and work performed by or on behalf of Developer; (v)
maintain or assure maintenance of workers' compensation insurance on its employees
entering the Site in the amounts required by the State of California; (vi) provide to City
prior to initial entry a certificate of insurance evidencing that Developer has procured a
commercial general liability insurance policy from an insurer reasonably acceptable to
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City covering any liability of Developer arising out of any activities on the Site, written on
a per occurrence and not claims made basis in a combined single limit of not less than
Three Million Dollars ($3,000,000), naming City and City as additional insureds entitled
to not less than thirty (30) days cancellation notice, with such policy to be primary and
non-contributing with any insurance carried by City or City; and (vii) promptly repair any
and all damage to the Site caused by Developer, its agents, employees, contractors, or
consultants in connection with such entry. Developer shall indemnify, defend and hold
harmless City, City, and their respective officers, employees, and agents from and
against any and all loss, cost, liability or expense (including reasonable attorneys' fees)
arising from the entry of Developer, provided, that the foregoing indemnity shall not
apply to any loss, cost, liability or expense arising from or related to (i) matters
discovered by Developer during its investigation of the Property, including any latent
defects in or Hazardous Materials on or in the Property, or any diminution in value of the
Property as a result thereof, or (ii) negligent or wrongful acts or omissions of the City or
its Representatives. Such indemnity shall survive the Close of Escrow or the
termination of this Agreement for any reason.
5.5.3 Due Diligence Notice.
Developer shall notify City in writing on or before the expiration of the Due
Diligence Period of Developer's approval or disapproval, in its sole and absolute
discretion, of the Due Diligence Materials and the condition of the Site and Developer's
investigations with respect thereto ("Due Diligence Notice"). Developer's failure to
deliver a Due Diligence Notice approving the Site on or before the expiration of the Due
Diligence Period shall conclusively be deemed Developer's disapproval of the Due
Diligence Materials and the condition of the Site. Developer's disapproval or deemed
disapproval shall be deemed Developer's election to not acquire the Site and, in such
event, this Agreement shall terminate and any documents and funds delivered by either
party shall be returned to it, including return of the Developer's Deposit to Developer.
5.5.4 As Is Conveyance.
Subject to the Developer's receipt of a title policy meeting the
requirements of Section 5.3.3 above, the provisions of Section 5.7 below, and the
express representations and warranties of City set forth herein, Developer shall accept
the Site and its title thereto in an As Is condition, and the City makes no representation
or warranty concerning the physical, environmental, geotechnical, or other condition of
the Site, the suitability of the Site for the Project, or the present use of the Site; or with
respect to the existence or absence of any "Hazardous Materials" thereon. Except as
expressly set forth herein, developer is not relying on oral or written representations or
warranties made by City, its agents, brokers, employees, independent contractors, or
representatives.
5.6 Hazardous Materials Indemnification.
The term "Hazardous Materials Contamination" shall mean the contamination
of the improvements, facilities, soil, groundwater, air or other elements on, in or under
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the Site by Hazardous Materials, or the contamination of the buildings, facilities, soil,
groundwater, air or other elements on, in, or under any other property as a result of
Hazardous Materials emanating from the Site.
Following the Conveyance, Developer agrees to save, protect, defend, indemnify
and hold harmless the City from and against any and all liabilities, suits, actions, claims,
demands, damages (including, without limitation, reasonable attorneys' fees) (the
foregoing are hereinafter collectively referred to as "Environmental Liabilities") which
may be incurred or suffered by the City resulting from the presence on or under, or the
escape, seepage, leakage, spillage, discharge, emission or release from the Site of any
Hazardous Materials or Hazardous Materials Contamination caused by Developer or its
Representatives after the Close of Escrow, or the violation, or alleged violation, of any
statute, ordinance, order, rule, regulation, permit, judgment or license relating to the
use, generation, release, discharge, storage, disposal or transportation of such
Hazardous Materials on, under, in or about, to or from, the Site resulting from such
Hazardous Materials or release of Hazardous Materials Contamination caused by
Developer or its Representatives after the Close of Escrow. Developer's obligations
under this Section 5.6 shall survive after the issuance of the Certificate of Completion or
any termination of this Agreement.
5.7 Discovery of Hazardous Materials Prior to Completion of Grading.
(a) Identification of Projected Remediation Costs. In the event that the
Developer has reason to suspect or believe that, prior to the later of (a) the completion
of the grading of the Site in accordance with the approved grading plan, or (b) the
Conveyance, Hazardous Materials are located in, on or under the Site, an
environmental consultant selected by Developer and acceptable to the City (an
"Environmental Consultant") shall undertake any further investigation necessary to
determine the environmental condition of the Site, and shall estimate the projected cost,
if any, of all activities necessary to design, process, permit and remove such Hazardous
Materials or contamination in, on or under the Site or to otherwise complete an
environmental clean-up of the Site for residential use in compliance with all
Governmental Requirements (the "Remediation Cost").
(b) Allocation of Remediation Costs Prior to Conveyance. If the
projected Remediation Cost is identified prior to the Conveyance and is less than Fifty
Thousand Dollars ($50,000), neither party shall have the right to terminate this
Agreement, the parties shall proceed with the required remediation work prior to the
Close of Escrow, and the Developer and the City shall each pay one-half of such
required remediation work. If the Environmental Consultant concludes (either initially or
during the course of performing the remediation work) that the Remediation Cost
identified prior to the Conveyance will exceed Fifty Thousand Dollars ($50,000), then
the Parties shall meet and discuss the allocation of any Remediation Cost in excess of
Fifty Thousand Dollars ($50,000). If, within sixty (60) days after first meeting to discuss
such allocation of costs, the Parties have not agreed upon an allocation of such
additional Remediation Costs (and if Developer does not elect to assume responsibility
for such additional Remediation-Costs), then this Agreement shall terminate.
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(c) Allocation of Remediation Costs After Conveyance. If the projected
Remediation Cost is first identified after the Conveyance but prior to the completion of
grading and is less than One Hundred Thousand Dollars ($100,000), neither party shall
have the right to terminate this Agreement and the parties shall promptly proceed with
the required remediation work. The Developer and the City shall each pay one-half of
such required remediation work. If the Remediation Cost is first identified after the
Conveyance but prior to the completion of grading, and is projected to exceed One
Hundred Thousand ($100,000) (either initially or during the course of performing the
remediation work), then the Parties shall meet and discuss the allocation of any
Remediation Cost in excess of One Hundred Thousand Dollars ($100,000). If, within
sixty (60) days after first meeting to discuss such allocation of costs, the Parties have
not agreed upon an allocation of such additional Remediation Costs (and if Developer
does not elect to assume responsibility for such additional Remediation Costs), then the
Parties shall be deemed to have elected to rescind the Conveyance and terminate this
Agreement, and, promptly thereafter, Developer shall convey the Site to the City free of
any deed of trust, mortgage or other encumbrances placed upon the Site by Developer
(in connection with which all closing costs shall be allocated in the same manner as in
the original conveyance).
(d) Performance of Work. All remediation work performed pursuant to
this Section 5.7 shall be performed by an environmental contractor selected by
Developer and acceptable to the City for any Hazardous Materials manifests required in
connection with the performance of any remediation work pursuant to this Section 5.7.
5.8 Environmental Inquiries.
In the event that, after Developer takes possession of the Site, Developer
discovers the presence of Hazardous Materials under or upon the Site or there is a
release of Hazardous Materials on or from the Site, the Developer shall provide to the
City a copy of any environmental permits, disclosures, applications, entitlements or
inquiries relating to such Hazardous Materials, including any notices of violation, notices
to comply, citations, inquiries, clean-up or abatement orders, cease and desist orders,
reports filed pursuant to self-reporting requirements and reports filed or applications
made pursuant to any Governmental Restrictions relating to Hazardous Materials and
underground tanks.
ARTICLE 6. DEVELOPMENT OF THE SITE.
6.1 Developer's Construction Obligations.
6.1.1 Construction of Improvements.
Developer shall construct all of the Improvements in compliance with the
Site Plan, the Schedule of Performance, the Scope of Development, the final Plans
approved by City in accordance with Section 6.2 below, all applicable governmental
restrictions, include, but not limited to the City issued Planned Development permit, and
the terms and provisions set forth in this Agreement. In the event of any inconsistency
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between the description of the Improvements in this Agreement and the final plans
approved by City, the approved plans shall govern. The Developer agrees to supply
information and otherwise assist City, upon City's request, to determine the
environmental impact of the proposed development, and to allow City to prepare and
process such environmental documents, if any, as may need to be completed for the
development pursuant to the requirements of the California Environmental Quality Act
("CEQA").
6.1.2 Scope of Development; Site Plan; Construction Drawinqs.
Subject to approval by regulatory agencies, the Site shall be developed
with twenty-four (24) for-rent 100% affordable residential apartment units, or such other
number of units or configuration as the parties may agree to during the development
approval process, all as more particularly described in this Agreement and the Scope of
Development. The parties shall determine by mutual agreement, prior to the Closing,
the number of residential Units that shall be restricted to low or lower income tenants
and very low income tenants.
The Improvements on the Site, including all Units and all on and off site
improvements constructed in connection therewith, shall be completed in one (1) phase.
The Developer has previously submitted to the City, and the City hereby
approves, the Site Plan attached hereto as Attachment No. 1. The Site Plan depicts the
overall development plan for the Site and shall guide all subsequent development. All
material changes to or adjustments of the Site Plan shall require the prior written
consent of the City and the Developer, which approval shall not be unreasonably
withheld, conditioned or delayed. As set forth in more detail in Section 6.2 below,
following execution of this Agreement, Developer shall submit to the City for its approval
preliminary and final "Plans" (as defined in Section 6.3.1) for the Site which will be
progressively more detailed and will constitute a logical evolution of the Site Plan.
During the preparation of all Plans, City and Developer shall hold regular meetings to
coordinate the preparation, submission and review of all Plans by the City staff and to
expedite City review and approval.
The Improvements contemplated for the Site are described in this Section
6.1.2 and in the Scope of Development. Subject to terms of this Agreement, including,
without limitation, Section 9.15 below, Developer shall commence, construct and
complete or cause the commencement, construction and completion of the
Improvements, and shall make all submissions in connection therewith, prior to the
deadlines set forth in the Schedule of Performance and in accordance with both the
Scope of Development and the terms of this Agreement.
Representatives of City shall have the right of access to the Site, without
charges or fees, upon advance notice and at normal construction hours during the
period of construction for the purposes of this Agreement, including but not limited to,
the inspection of the work being performed in constructing the Project, so long as all
City Representatives comply with all safety rules and do not interfere with, delay or
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interrupt Developer's construction activities. City does not by this Section 6.1.2 assume
any responsibility or liability for supervision or inspection of the construction of the
Project. City shall indemnify, defend and hold Developer, and its principals, members,
Affiliates, and employees harmless from any liabilities, suits, action, claims, demands or
damages (including reasonable attorneys' fees) arising from any property damage or
personal injury caused or incurred by any City Representatives performing such
inspections or otherwise arising from any entry onto the Site by any City
Representatives.
6.1.3 Architectural Quality.
Developer understands and agrees that it will be required to develop the
Site by means of materials, workmanship and an overall design that will result in a
residential complex that is of good quality and of benefit to the Site and the community,
and consistent with City approved Planned Development Permit 2015-01.
6.1.4 Land Use Approvals.
Prior to the Close of Escrow and as a condition hereto, Developer shall
have, at his own expense, secured or caused to be secured any and all approvals, land
use, and other entitlements which may be required for the Project by City or any other
governmental City with jurisdiction over the Project, including but not limited to General
Plan Amendment, Zone Changes etc. Following the Effective Date of this Agreement,
Developer shall without limitation, apply for and use its reasonable good faith efforts to
secure all permits required by the City, County of Ventura, and other governmental
agencies with jurisdiction over the improvements, including the State General.
Construction Storm Water Permit's Storm Water Pollution Prevention Plan requirements
and any other requirements therein.
The execution of this Agreement does not constitute the granting of or
commitment to obtain any required land use permits, entitlements or approvals required
by the City.
6.2 Submissions and Approvals.
6.2.1 Schedule of Performance; Improvements; Plans.
The Schedule of Performance specifies deadlines for the submission by
Developer to City of various submissions, including preliminary and final construction
drawings, grading plans, architectural, mechanical, electrical, structural and other plans,
specifications, building elevations and renderings, landscape plans, and other like plans
required by City and City approved PD in connection with review of the Improvements to
be constructed on the Site by Developer (collectively, the "Plans") and the issuance of
the necessary permits therefor. Developer is responsible for paying any and all
development impact fees imposed by the City.
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6.2.2 Submission of Plans.
6.2.2.1 Not later than the dates set forth in the Schedule of
Performance, Developer shall submit to City the preliminary and final Plans for the
Improvements to be constructed on the Site by Developer. All Plans are subject to the
approval of City in accordance with the generally applicable procedures and
requirements of the City. The City and Developer shall communicate and consult
informally, as frequently as is necessary, to ensure that the formal submission of all
documents and Plans to the City can receive reasonably prompt and speedy
consideration.
6.2.3 Submission of Evidence of Financing; Submission of Evidence of
Construction Contract.
6.2.3.1 Construction Loan.
By the deadline specified therefor in the Schedule of Performance,
Developer agrees to deliver to City, for its written approval, which approval shall not be
unreasonably withheld, conditioned or delayed, a written commitment(s) ("Construction
Commitment"), from a lender (licensed to do business in California if legally required)
that is financially secure and possesses a sound credit rating ("Construction Lender")
by which said Construction Lender shall agree, subject to customary closing conditions
and final loan documentation consistent with the terms of said written commitment(s), to
make a construction loan to Developer (the "Construction Loan") for the development
and construction of the Improvements in accordance with this Agreement. In the event
of any disapproval of the Construction Commitment for the Improvements, City shall,
concurrently with delivery of the notice of such disapproval to Developer, inform
Developer in writing of the reasons for disapproval and the required changes to the
Construction Commitment. The written notice of disapproval from the City is referred to
herein as the "Commitment Disapproval Notice". If Developer objects to the requested
changes, then the City and Developer agree to meet to discuss their differences within
ten (10) days after the Developer gives such notice. Following such meeting, Developer
and Construction Lender shall revise the Construction Commitment and resubmit it for
approval to the City, as required by this Agreement, by the later of (i) thirty (30) days
after receipt of the Commitment Disapproval Notice, or (ii) ten (10) days after such
meeting, unless the nature of such changes requires a longer period of time, in which
case Developer shall resubmit said Construction Commitment as soon as reasonably
possible. Any such resubmissions shall be approved or disapproved and revised within
the times set forth herein with respect to the initial submission.
The amount of the Construction Commitment shall not be less than
(i) the estimated cost of the development of the Improvements at issue ("Development
Costs"), less (ii) the amount of the Developer's equity contribution, if any, to the cost of
constructing the Improvements.
In the event Developer will finance all or a portion of the
Development Costs by means of an equity contribution, or equity financing source,
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Developer agrees to demonstrate, to City's reasonable satisfaction, the source of the
funds providing the equity contribution and that the amount of such equity funds is
sufficient to cover all contemplated Development Costs (other than those financed by
the Construction Loan) necessary to fully complete and market the subject
Improvements. The availability of such equity funds shall be established by the
certification from the chief financial officer or chief executive officer of Developer or its
manager confirming that Developer has sufficient funds for funding of such
Development Costs and that such funds have been committed to such Development
Costs. If all Development Costs will be funded by such equity funds, no Construction
Loan shall be required and all Construction Commitment and Construction Loan
requirements shall be deemed satisfied by proof of the availability of such equity funds.
The Construction Loan shall be consistent with the terms and
provisions of this Agreement and City review of any Construction Loan shall be only for
the purpose of confirming that such Construction Loan complies with all of the terms
and requirements set forth in this Agreement. Prior to execution of any final
Construction Loan documents by Developer, Developer shall secure the City's approval
of the terms and conditions of those Construction Loan documents for compliance with
the requirements of this Agreement and the previously approved Construction
Commitment. City shall approve or disapprove said Construction Loan documents
within ten (10) working days of their submission. City's review and approval or
disapproval of said Construction Loan documents shall be solely for the purpose of
determining the consistency of said documents with the Construction Commitment, this
Agreement and any prior understanding or agreement reached by City and the
Construction Lender. Concurrent with any disapproval, City shall inform Developer in
writing of the reasons for such disapproval. If City fails to notify Developer of its
approval or disapproval and the reasons for any disapproval within that thirty (30) day
period, then the Construction Loan documents shall be deemed approved.
6.2.3.2 Construction Contract.
By the deadline specified therefor in the Schedule of Performance,
Developer agrees to deliver to City, for its review and approval, a construction
contract(s) (the "Construction Contract") for the Improvements, which Construction
Contract shall obligate a reputable and financially responsible general contractor(s)
("General Contractor"), licensed in California and with experience in completing the
type of Improvements contemplated by this Agreement, to commence and complete the
construction of the applicable Improvements in accordance with this Agreement.
Developer shall also have the right, at its election, to act as its own General Contractor
with respect to construction of the Project, in which case, the Construction Contract
requirement shall be deemed satisfied by such election.
City shall approve or disapprove said Construction Contract within
thirty (30) days of its submission. City's disapproval shall not be unreasonably
withheld, conditioned or delayed. In the event of any disapproval, City shall,
concurrently with delivery of the notice of such disapproval to Developer, inform
Developer in writing of the reasons for disapproval and the required changes to the
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Construction Contract. If City fails to notify Developer of its approval or disapproval and
the reasons for any disapproval within such thirty (30) day period, then the Construction
Contract shall be deemed approved. Developer shall have ten (10) business days from
receipt of any notice from the City specifying required changes ("Construction Contract
Disapproval Notice"), within which to notify City that Developer agrees to make such
changes or objects to any requested changes. If Developer notifies City within said 10-
day period of its objections to the requested changes, then the City and Developer
agree to meet to discuss their differences within ten (10) days after the Developer gives
such notice. Following such meeting, Developer and the General Contractor shall
revise the Construction Contract and resubmit it for approval to the City as required by
this Agreement by the later of (i) thirty (30) days after receipt of the Construction
Contract Disapproval Notice, or (ii) ten (10) days after such meeting, unless the nature
of such changes requires a longer period of time, in which case Developer shall
resubmit said Construction Contract as soon as reasonably possible. Any such
resubmissions shall be approved or disapproved and revised within the times set forth
herein with respect to the initial submission.
6.2.4 Lot Line Adiustment.
Prior to the Conveyance, Developer, at its sole cost, shall cause to be filed
and Developer shall obtain approval of Lot Line Adjustment of the Site ("Lot Line
Adjustment") defining the entire Site as one legal lot. City shall reasonably cooperate
with Developer in the filing and processing of such Lot Line Adjustment, including
execution and delivery of any required applications and submissions. Following the
Conveyance, Developer shall diligently pursue recordation of a map for the Site,
consistent with the approved Lot Line Adjustment, within the period provided in the
Schedule of Performance.
6.3 Costs of Development.
Except as otherwise expressly set forth in this Agreement, Developer shall bear
all costs incurred in connection with the construction and maintenance (during the
period of construction) of all Improvements constructed by Developer pursuant to this
Agreement, including without limitation all costs incurred in connection with the
investigation and preparation of the Site for development, and all costs of preparation of
any Plans or other submissions made by Developer pursuant to this Agreement.
Before commencement of construction or development of any buildings,
structures or other works of improvement upon the Site by Developer, the Developer
shall secure or cause to be secured any and all permits which may be required by the
City or any other governmental City affected by such construction, development or
work. Except as otherwise expressly provided herein, all such permits shall be secured
at the Developer's own expense. The Developer shall be required to comply with all
conditions to approval of all zoning changes, general plan amendments, subdivision
maps, conditional use permits, CEQA approvals, precise plans or any other land use
approvals, and, except as otherwise expressly provided in this Agreement, all costs of
compliance shall be at the sole expense of the Developer.
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6.4 City Assistance.
In order to assist in the financing of the Project, City has committed to the
following:
6.4.1 Purchase Loan. Concurrently with the approval of this Agreement,
the City approves a $1,830,000.00 purchase loan to Developer to be used to purchase
the Site from the City ("Purchase Loan"). The Purchase Loan will accrue simple interest
at a rate of 2.5% per annum. Developer will begin to make an annual payment to the
City each year, after the City's Permanent Loan is paid in full, in the amount of fifty
percent (50%) of the Residual Receipts for the prior calendar year, all as set forth in the
form of Promissory Note attached hereto as Attachment No. 9.
6.4.2 Permanent Loan. Concurrently with the approval of this
Agreement, the City approves a $2,000,000.00 permanent loan to Developer to be used
to retire a portion of the construction loan and serve as permanent financing
("Permanent Loan"). The Permanent Loan will accrue simply interest at a rate of 3.75%
per annum and have a 15 year term. Upon reconyenance of the deed of trust for the
Construction Loan, Developer will begin to make a single annual payment to the City
each year for the term of the promissory note, secured by deed of trust, with fifty
percent (50%) of the available Residual Receipts. A balloon payment for the remaining
balance and accured interest will be paid to the City at the end of the 15 year term. The
Permanent Loan will also utilize the form of Promissory Note attached as Attachment
No. 9.
6.5 Insurance.
Developer and its successors and assigns shall procure or cause to be procured
and shall keep in full force and effect, commencing upon the Close of Escrow and
continuing until the issuance of the Certificate of Completion or earlier termination of this
Agreement, for the mutual benefit of Developer and City, a commercial general liability
policy in the amount of Three Million Dollars ($3,000,000) combined single limit policy,
and a comprehensive automobile liability policy in the amount of One Million Dollars
($1,000,000), combined single limit, or such other policy limits as the City may approve
at its discretion, including contractual liability, as shall protect the Developer, City and
City from claims for such damages. Such policy or policies shall be written on an
occurrence form. The Developer shall furnish a certificate of insurance countersigned
by an authorized agent of the insurance carrier on a form approved by the City setting
forth the general provisions of the insurance coverage. This countersigned certificate
shall name the City and the City and their respective officers, agents, and employees as
additionally insured parties under the policy, and the certificate shall be accompanied by
a duly executed endorsement evidencing such additional insured status. The certificate
and endorsement by the insurance carrier shall contain a statement of obligation on the
part of the carrier to notify City and the City of any material change, cancellation or
termination of the coverage at least thirty (30) days in advance of the effective date of
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any such material change, cancellation or termination. Coverage provided hereunder
by the Developer shall be primary insurance and not be contributing with any insurance
maintained by the City or City, and the policy shall contain such an endorsement. The
required insurance shall be obtained and the required certificate shall be furnished by
the Developer by the time set forth in the Schedule of Performance. In no event shall
the limits of any policy be considered as limiting the liability of Developer hereunder or
limiting the indemnity obligation set forth in the Agreement.
Following City acceptance and approval of any certificates, endorsements or
offered coverage submitted by Developer to City in satisfaction of the requirements of
this Section, such insurance coverage shall be deemed in compliance with and shall
constitute conclusive satisfaction of the requirements of this Section and City shall not
thereafter assert that such insurance coverages are insufficient to satisfy the
requirements of this Agreement.
6.6 Taxes, Assessments and Liens.
Prior to recordation of the Certificate of Completion, Developer shall not place or
authorize to be placed on the Site, or any portion thereof, any Encumbrance (other than
the approved Construction Loan), without the prior written consent of City, which
approval shall not be unreasonably withheld, conditioned or delayed so long as the
Encumbrance is for the acquisition of the Site or the development of the Project.
Developer may contest the validity or amount of any tax assessment or Encumbrance
upon the Site, and exercise all remedies available to the Developer with respect
thereto; provided, however, notwithstanding anything in this Agreement to the contrary,
no contest, opposition or objection shall be continued or maintained after the date on
which the imposition or assessment at which it is directed becomes delinquent unless
the Developer has paid such imposition or assessment under protest or posted a bond
or other security sufficient to fully protect the Site against any lien which could arise
from the contest of such imposition or assessment.
6.7 Security Financing; Rights of Lenders.
Notwithstanding anything that is or appears to be to the contrary in Sections 2.3
or 6.6, Developer may, prior to issuance of the Certificate of Completion, encumber the
Site with a deed of trust securing a Construction Loan provided that such loan is
obtained in accordance with and complies with all of the requirements, terms and
conditions expressly imposed by this Agreement.
The holder of any mortgage or deed of trust authorized by this Agreement shall
not be obligated by the provisions of this Agreement to construct or complete the
Improvements or to guarantee such construction or completion; nor shall any covenant
or any other provision in the Grant Deed for the Site be construed to obligate such
holder to construct or complete the Improvements. However, nothing in this Agreement
shall be deemed to construe, permit or authorize any such holder to devote the Site to
any uses or to construct any improvements thereon, other than those uses or
Improvements provided for or authorized by this Agreement.
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6.8 Notice of Default to Construction Lender; Right to Cure;
With respect to any mortgage or deed of trust granted by Developer as provided
herein, whenever the City may deliver any notice or demand to Developer with respect
to any breach or default by the Developer in completion of construction of the
Improvements, the City shall at the same time deliver to each holder of record of any
mortgage or deed of trust authorized by this Agreement a copy of such notice or
demand. Each such holder shall (insofar as the rights granted by the City are
concerned) have the right, at its option, within thirty (30) days after the receipt of the
notice, to cure or remedy or commence to cure or remedy and thereafter to pursue with
due diligence the cure or remedy of any such default and to add the cost thereof to the
mortgage debt and the lien of its mortgage. Nothing contained in this Agreement shall
be deemed to permit or authorize such holder to undertake or continue the construction
or completion of the Improvements, or any portion thereof (beyond the extent necessary
to conserve or protect the improvements or construction already made) without first
having expressly assumed the Developer's obligations to the City by written agreement
reasonably satisfactory to the City. The holder, in that event, must agree to complete, in
the manner provided in this Agreement, the Improvements to which the lien or title of
such holder relates. Any such holder properly completing such improvement shall be
entitled to a Certificate of Completion. It is understood that a holder shall be deemed to
have satisfied the thirty (30) day time limit set forth above for commencing to cure or
remedy a Developer default which requires title and/or possession of the Site (or portion
thereof) if and to the extent any such holder has within such thirty (30) day period
commenced proceedings to obtain title and/or possession and thereafter the holder
diligently pursues such proceedings to completion and cures or remedies the default.
6.9 Failure of Holder to Complete Improvements.
In any case where, sixty (60) days after obtaining title to or possession of the
Site, the holder of any mortgage or deed of trust creating a lien or encumbrance upon
the Site or any part thereof has not exercised the option to construct, or, if it has
exercised the option, has not proceeded diligently with construction of the
Improvements, the City, in additions to other remedies it may have by this Agreement or
applicable law, may purchase the mortgage or deed of trust by payment to the holder of
the amount of the unpaid mortgage or deed of trust debt, including principal and interest
and all other sums due to such holder and secured by the mortgage or deed of trust. If
the ownership of the Site or any part thereof has vested in the holder, the City, if it so
desires, shall be entitled to a conveyance from the holder to the City upon payment to
the holder of an amount equal to the sum of the following:
(a) The unpaid mortgage or deed of trust debt at the time title became
vested in the holder (less all appropriate credits, including those resulting from collection
and application of rentals and other income derived by the lender from operations
conducted on the Site or other income received during foreclosure proceedings);
(b) All expenses with respect to foreclosure;
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(c) The net expense, if any (exclusive of general overhead), incurred
by the holder as a direct result of the subsequent management of the Site or any part
thereof;
(d) The costs of any improvements made by such holder; and
(e) An amount equivalent to the non-default interest that would have
accrued on the aggregate of such amounts had all such amounts become part of the
mortgage or deed of trust debt and such debt had continued in existence to the date of
payment by the City.
6.10 Right of the City to Cure Mortgage or Deed of Trust Default.
In the event of a default or breach by Developer under a mortgage, deed of trust,
or other security interest or conveyance for financing prior to the issuance of the
Certificate of Completion, and subject to the applicable period during which Developer
may cure such default, City may cure the default prior to completion of any foreclosure.
In such event, City shall be entitled to reimbursement from Developer of all coats and
expenses reasonably incurred by City in curing the default, which right of
reimbursement shall be secured by a lien upon the Site to the extent of such costs and
disbursements. Any such lien shall be subject to: (a) any mortgage, deed of trust or
other security instrument or sale and leaseback or other conveyance for financing
permitted by this Agreement; and (b) any rights or interests provided in this agreement
for the protection of the holders of such mortgages, deeds of trust, or other security
instruments, the lessor under a sale and lease-back, or the grantee under such other
conveyance for financing.
6.11 Right of the City to Satisfy Other Liens on the Site After Title Passes.
After the Conveyance of title or possession and prior to the completion of
construction, and after the Developer has received written notice and has failed within
thirty (30) days thereafter to adequately bond against or satisfy any liens or
encumbrances on the Site which are not otherwise permitted under this Agreement, the
City shall have the right, but not the obligation, to satisfy any such liens or
encumbrances. In such event Developer shall be liable for, and the City shall be
entitled to reimbursement from the Developer, within ten (10) days of written demand, of
any costs or expenses reasonably incurred by City in protecting the Site against or
securing the discharge of such lien or encumbrance. Such amount shall become a lien
on the Site in accordance with the provisions of this Section 6.11; provided that such
lien shall be subject to: (a) any mortgage, deed of trust or other security instrument or
sale and leaseback or other conveyance for financing permitted by this Agreement; and
(b) any rights or interests provided in this Agreement for the protection or the holders of
such mortgages, deeds of trust, or other security instruments, the lessor under a sale
and lease-back, or the grantee under such other conveyance for financing.
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6.12 Certificate of Completion.
Provided construction of all of the Improvements has been completed, City shall,
upon the request of the Developer, furnish to the Developer, a Certificate of Completion
in the form attached hereto as Attachment No. 6. The "Certificate of Completion" shall
conclusively establish that the City has determined that construction of the
Improvements required by this Agreement has been satisfactorily completed in
compliance with the terms of this Agreement. The Certificate of Completion shall be in
such form as to permit it to be recorded in the Office of the Ventura County Recorder
against the remaining portions of the Site in which Developer holds any interest.
If the City refuses or fails to furnish the Certificate of Completion upon written
request from Developer, the City shall, within five (5) business days of receipt of said
written request, provide Developer with a written statement of the reasons for the City's
refusal or failure to furnish the Certificate of Completion identifying any actions
Developer is required to take in order to obtain the applicable Certificate of Completion.
In any event, City shall not unreasonably withhold, condition or delay issuance of any
Certificate of Completion. If the reason for therefusal to issue the Certificate of
Completion is confined to the immediate unavailability of specific finish items or
materials for landscaping or other minor "punch list" items, City shall issue its Certificate
of Completion upon the posting of cash, a bond, or other security reasonably acceptable
to City in an amount representing the fair value of the work not yet completed, and
Developer shall thereafter diligently complete the uncompleted "punch list" work.
The Certificate of Completion shall not be construed as a representation or
warranty by City that the Project satisfies any obligation of Developer to any holder of
an Encumbrance, or to any insurer of any such holder. Such Certificate of Completion
is not a notice of completion as referred to in California Civil Code Section 3093.
6.13 Compliance with Laws.
Developer shall carry out the design, construction and operation of the Project in
conformity with all applicable federal, state, and local laws, including the City zoning and
development standards, building, plumbing, mechanical and electrical codes, and all
other provisions of the City of Moorpark Municipal Code, all applicable disabled and
handicapped access requirements, and all environmental mitigation measures imposed
as conditions of approval of the Project.
6.14 Indemnification.
Developer shall indemnify, defend (with legal counsel reasonably acceptable to
City), assume all responsibility for, and hold City, and their respective officers, officials,
members, employees, agents, representatives, and volunteers, harmless from all
claims, demands, damages, defense costs or liability of any kind or nature relating to (i)
any damages to property or death or injuries to persons (including reasonable attorneys'
fees and costs and expert witness fees), which may be caused by the negligent acts or
omissions or willful misconduct of Developer under this Agreement, whether such
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activities or performance of this Agreement be by Developer or by anyone directly or
indirectly employed or contracted with by Developer and whether such damage shall
accrue or be discovered before or after termination of this Agreement, except to the
extent such matters are caused by the negligence or willful misconduct of City or their
respective officers, officials, members, employees, agents, representatives, or
volunteers acting in an official capacity; and (ii) any litigation, administrative or
adjudicative challenge by third parties to the validity or implementation of this
Agreement, the entitlements, or the certification or approval of the environmental
document(s) with respect to the Project and this Agreement; provided Developer shall
not have any indemnity obligation under this Agreement with respect to any such
litigation which City may elect to pursue over Developer's objection. Notwithstanding
the foregoing, the above indemnity and defense obligations shall not apply, and
Developer shall have no liability or responsibility hereunder, to indemnity or defend the
City in connection with lawsuits or other legal challenges by third parties who oppose
the project or its claimed environmental impacts.
ARTICLE 7. USE AND MAINTENANCE OF THE SITE
7.1 Uses.
The Developer agrees for itself, its successors and assigns, which covenants
shall run with the land and bind every successor or assign in interest of Developer, that
during development of the Site pursuant to this Agreement and thereafter, neither the
Site nor the Improvements, nor any portion thereof, shall be improved, used or occupied
in violation of any applicable governmental restrictions or the restrictions of this
Agreement. Furthermore, Developer and its successors and assigns shall not initiate,
maintain, commit, or permit the maintenance or commission on the Site or in the
Improvements, or any portion thereof, of any nuisance, public or private, as now or
hereafter defined by any statutory or decisional law applicable to the Site or the
Improvements, or any portion thereof.
Notwithstanding anything to the contrary or that appears to be to the contrary in
this Agreement, Developer hereby covenants, on behalf of itself, and its successors and
assigns, which covenants shall run with the land and bind every successor and assign
in interest of Developer, that, for the term specified herein and in the documents
executed and recorded pursuant hereto, Developer and such successors and assigns
shall use the Site solely for the purpose of constructing, maintaining and using a
residential project meeting the requirements and restrictions of this Agreement,
including, without limitation, restriction of the lease of each of the Restricted Residential
Units by Developer only to a Qualified Renter.
7.2 The restrictions upon renters and rental units shall continue in effect for
the longest time feasible but in no event less than the Life of the Project or fifty-five (55)
years.
During the term of this Agreement, Developer shall maintain, or cause to be
maintained, all Improvements owned by Developer on the Site, in good order,
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condition, and repair and in accordance with the approved Plans for the Project and all
applicable governmental restrictions
7.3 Obligation to Refrain from Discrimination.
Developer agrees to comply with all fair housing laws, and to that end there shall
be no discrimination against or segregation of any person, or group of persons, on
account of race, color, creed, religion, sex, marital status, national origin, ancestry, or
other protective classes as provided by applicable federal and state law in the sale,
lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Site, nor shall
Developer itself or any person claiming under or through it establish or permit any such
practice or practices of discrimination or segregation with reference to the selection,
location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the Site or any portion thereof.
7.4 Form of Nondiscrimination and Nonsegregation Clauses. Developer
herein covenants by and for itself, its successors and assigns, that there shall be no
discrimination against or segregation of, any person or group of persons on account of
any basis listed in subdivision (a) or (d) of Section 12955 of the Government Code, as
those bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1)
of subdivision (p) of Section 12955, and Section 12955.2 of the Government Code, in
the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the
premises herein conveyed, nor shall the grantee or any person claiming under or
through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of
tenants, lessees, subtenants, sublessees, or vendees in the premises herein conveyed.
The foregoing covenants shall run with the land.
Notwithstanding the immediately preceding paragraph, with respect to familial
status, the immediately preceding paragraph shall not be construed to apply to housing
for older persons, as defined in Section 12955.9 of the Government Code. With respect
to familial status, nothing in the immediately preceding paragraph shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to
housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil
Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the immediately preceding paragraph.
All deeds, leases or contracts entered into by Developer relating to the Project
shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) In deeds: The Grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (I) of subdivision (p)
-32- 4 3
of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed, nor shall the grantee or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land.
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51. and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government
Code shall apply to the immediately preceding paragraph."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and
subject to the following conditions:
'That there shall be no discrimination against or segregation of any person
or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (I) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein lease.
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Sections 12955 of the Government
Code shall apply to the immediately preceding paragraph."
(c) In contracts: "There shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraphs (I) of subdivision
(p) of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
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sublease, transfer, use, occupancy, tenure, or enjoyment of the premises which are the
subject of this Agreement, nor shall the grantee or any person claiming under or through
him or her, establish or permit any practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land."
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government
Code shall apply to the immediately preceding paragraph."
The foregoing covenants shall, without regard to technical classification
and designation, be binding for the benefit and in favor of City, its successors and
assigns, any occupants of the Project, and any successor in interest to the Project. The
covenants against discrimination shall remain in effect in perpetuity.
7.5 Rental of Residences by Developer.
Moorpark Resident Priority. The Developer, to the fullest extent allowed by law,
shall provide every opportunity for Moorpark residents to occupy the Units during the
initial occupancy of the Project. Said priority shall include, at a minimum, a Thirty (30)
day initial lease period exclusive to City of Moorpark residents.
Reporting. Following the commencement of marketing of the Units, Developer
shall provide City with quarterly reports identifying the Units leased, and such other
information as City may reasonably request. If the project is financed through tax
credits, the submittal of copies of the reports required under Tax Credit Allocation
Committee shall satisfy the reporting requirement hereunder. City agrees to exercise
reasonable efforts to assist Developer in connection with implementation of the
Developer's marketing efforts, including assistance with promotion, marketing and
affordable renter qualification activities, and by incorporating project materials,
presentations, mailings, information and announcements into City's general housing
assistance presentations, mailings and materials; provided, that, unless City agrees
otherwise in its sole discretion, City shall not be required to develop any separate
Project focused materials or programs or incur any out-of-pocket expenses in
connection with such assistance to Developer.
7.6 Effect and Duration of Covenants.
After issuance of a Certificate of Completion in accordance with Section 6.12, all
of the terms, covenants, agreements and conditions set forth in this Agreement relating
to the construction of the Improvements on the Site shall cease and terminate with the
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exception of any Developer's indemnity obligations hereunder which have accrued as of
such date and any other provisions that expressly survive termination. All of the other
applicable terms, covenants, and conditions set forth in this Agreement relating to the
use, operation, ownership and maintenance of the Site shall survive and shall remain in
full force and effect in accordance with their terms. Except as otherwise expressly
provided in this Agreement, the covenants, conditions, restrictions, warranties and
representations established in this Agreement shall without regard to technical
classification or designation, be binding upon and inure to the benefit of the successors,
transferees and assigns of each of the Parties hereto, whether by merger,
consolidation, sale, transfer, liquidation or otherwise.
ARTICLE 8. DEFAULTS, REMEDIES AND TERMINATION.
8.1 Defaults.
Subject to extensions of time pursuant to Section 9.15 below, a failure to observe
or perform any restriction, covenant or obligation applicable to the non-performing Party
under the terms of this Agreement, including, without limitation, the failure of a Party to
meet any of the deadlines specified in the Schedule of Performance, shall, after the
giving of the notice required by Section 8.3, constitute a default ("Default(s)") under this
Agreement by the non performing party.
8.2 Right to Cure Events of Default.
Unless a different cure period is expressly provided elsewhere in this Agreement,
the Party whose acts or omissions to act give rise to a Default as defined in Section 8.1
shall be entitled to cure, correct, or remedy such Default, if (i) such defaulting Party
cures the Default within thirty (30) days of receipt of the Notice of Default, as defined in
Section 8.3, or (ii) for Defaults that cannot reasonably be cured, corrected, or remedied
within such thirty (30) day time period, such party commences to cure such failure or
delay within such time period and diligently and continuously prosecutes such cure,
correction or remedy to completion. If a Default is not cured within the applicable period
provided above, it shall thereafter constitute an "Uncured Default".
8.3 Notice of Default.
The non-breaching Party shall give written notice of Default ("Notice of Default")
to the non-performing Party, specifying the breach of this Agreement complained of by
the non-breaching Party. Failure pr delay in giving such notice shall not constitute a
waiver of any breach of this Agreement. As provided in Section 8.1, following the giving
of such Notice of Default, the non-performance which is complained of shall constitute a
Default under this Agreement, unless and until the same has been cured by the non-
performing Party.
8.4 Waiver of Default.
Except as otherwise expressly provided in this Agreement, any failure or delay by
either Party in asserting any of its rights or remedies as to any Default shall not operate
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as a waiver of any Default or of any rights or remedies in connection therewith or of any
other rights and remedies provided by this Agreement or by law, or deprive such Party
of its right to institute and maintain any actions or proceedings which it may deem
necessary to protect, assert or enforce any such rights or remedies.
8.5 Legal Actions and Remedies.
8.5.1 Institution of Legal Actions.
In addition to any other rights and remedies and subject only to the
limitations of this Section 8.5.1, either Party may institute legal action to cure, correct or
remedy any Uncured Default, to recover damages for any Uncured Default, or to obtain
any other remedy consistent with the purpose of this Agreement; provided, however,
that notwithstanding anything in the foregoing to the contrary, in no event shall a party
be entitled to obtain damages from the other party for lost profits or any other like
consequential damages.
8.6 Specific Performance.
If either Party commits an Uncured Default under any of the provisions of this
Agreement, the non-defaulting Party at its option may thereafter (but not before)
commence an action for specific performance of the terms of this Agreement.
8.7 Damages.
Subject to the limitations set forth in Sections 8.5.1, if either Party commits an
Uncured Default with regard to any of the provisions of this Agreement, the defaulting
Party shall be liable to the other Party for any damages caused by such Default.
8.8 Rights and Remedies Are Cumulative.
Except as otherwise expressly stated in this Agreement, the rights and remedies
of the Parties are cumulative, and the exercise by either Party of one or more of such
rights or remedies shall not preclude the exercise by it, at the same time or different
times, of any other rights or remedies for the same Default or any other Default by the
other Party.
8.9 Attorneys' Fees.
In the event that either Party hereto brings any action or files any proceeding to
declare the rights granted herein or to enforce any of the terms of this Agreement or as
a consequence of any breach by the other Party of its obligations hereunder, the
prevailing Party in such action or proceeding shall be entitled to have its reasonable
attorneys' fees and out-of-pocket expenditures paid by the losing Party. The attorneys'
fees so recovered shall include fees for prosecuting or defending any appeal and shall
be awarded for any supplemental proceedings until the final judgment is satisfied in full.
In addition to the foregoing award of attorneys' fees to the prevailing Party, the
prevailing Party in any lawsuit on this Agreement shall be entitled to its attorneys' fees
-36- 4 7
incurred in any post judgment proceedings to collect or enforce the judgment. This
provision is separate and several and shall survive the merger of this Agreement into
any judgment on this Agreement.
8.10 Reentry and Revestinq of Title in the City After the Conveyance and Prior
to Completion of Construction.
The City has the right to reenter and take possession of the portion of the Site
then owned by Developer, with all Improvements thereon, and terminate and revest in
the City the Site conveyed to the Developer if after Conveyance and prior to the
issuance of the Certificate of Completion, the Developer (or its successors in interest)
shall, subject to extension for force majeure in accordance with Section 9.15:
(a) fail to start the construction of the Improvements by the time
required by this Agreement and fail to cure such Default after written notice thereof from
the City within the cure period set forth in Section 8.2 above; or
(b) abandon or substantially suspend construction of the Improvements
required by this Agreement for a period of thirty (30) days and fail to resume such
construction within thirty (30) days after written notice thereof from the City; or
(c) materially fail to complete construction of the Improvements, or any
portion thereof, within the time set forth in this Agreement, and fail to cure such Default
after written notice thereof from the City within the cure period set forth in Section 8.2
above; or
(d) contrary to the provisions of Section 2.3, Transfer or suffer any
involuntary Transfer of the Site or any part thereof in violation of this Agreement and fail
to cure such breach within the cure period provided in Section 8.2 above.
Such right to reenter, terminate and revest shall be subject to and be
limited by and shall not defeat, render invalid or limit:
(a) Any mortgage or deed of trust or other security interest permitted
by this Agreement; or
(b) Any rights or interests provided in this Agreement for the protection
of the holders of such mortgages or deeds of trust or other security interest.
The Grant Deed shall contain appropriate reference and provision to give
effect to the City's right as set forth in this Section 8.10, under specified circumstances
prior to recordation of a Certificate of Completion with respect to the affected portion of
the Site, to reenter and take possession of that portion of the Site, with all
Improvements thereon, and to terminate and revest in the City the estate conveyed to
the Developer.
Upon the revesting in the City of title to the Site as provided in this Section
8.10, the City shall, pursuant to its responsibilities under state law, use its reasonable
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efforts to resell the Site as soon and in such manner as the City shall find feasible and
consistent with the objectives of such law, to a qualified and responsible party or parties
(as determined by the City) who will assume the obligation of making or completing the
Improvements, or such other Improvements in their stead as shall be satisfactory to the
City. Upon such resale of the Site, the proceeds thereof, after repayment of any
mortgage or deed of trust or other security interests encumbering the Site which are
permitted by this Agreement, shall be applied:
(c) First, to reimburse the City for all costs and expenses incurred by
the City, including, but not limited to, any expenditures by the City or the City in
connection with the recapture, management and resale of the Site or part thereof (but
less any income derived by the City from the Site or part thereof in connection with such
management); all taxes, assessments and water or sewer charges with respect to the
Site or part thereof which the Developer has not paid (or, in the event the Site is exempt
from taxation or assessment of such charges during the period of ownership thereof by
the City, an amount equal to such taxes, assessments, or charges as would have been
payable if the Site were not so exempt); any payments made or necessary to be made
to discharge any encumbrances or liens existing on the Site or part thereof at the time
of revesting of title thereto in the City, or to discharge or prevent from attaching or being
made any subsequent encumbrances or liens due to obligations, defaults or acts of the
Developer, its successors or transferees; any expenditures made or obligations incurred
with respect to the making or completion of the improvements or any part thereof on the
Site, or part thereof; and any amounts otherwise owing the City, and in the event
additional proceeds are thereafter available; then
(d) Second, to pay the Developer; (i) the amount equal to the
unreimbursed third party costs incurred by Developer for the development or the
financing of the Improvements to the portion of the Site acquired by City, less (ii) any
gains or income withdrawn or made by the Developer from such portion of the Site or
the improvements thereon. In addition, the sums otherwise due under the Development
Costs Loan will be forgiven, as a form of further reimbursement.
Any balance remaining after such reimbursements shall be retained by the
City as its property.
The rights established in this Section 8.10 are not intended to be exclusive
of any other right, power or remedy, but each and every such right, power, and remedy
shall be cumulative and concurrent and shall be in addition to any other right, power and
remedy authorized herein or now or hereafter existing at law or in equity. These rights
are to be interpreted in light of the fact that the City will have conveyed the Site to the
Developer for redevelopment purposes, and not for speculation in undeveloped land.
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ARTICLE 9. GENERAL PROVISIONS.
9.1 Notices, Demands and Communications Between the Parties.
Formal notices, demands and communications between the City and Developer
shall be deemed sufficiently given if delivered to the principal offices of the City or the
Developer, as applicable, by (i) personal service or (ii) express mail, federal express, or
other like overnight mail or courier service, (iii) registered or certified mail, postage
prepaid, return receipt requested, or (iv) facsimile (provided that any notice delivered by
facsimile is followed by a separate notice sent within twenty-four (24) hours after the
transmission by facsimile delivered in one of the other manners specified above). Such
notice shall be addressed:
If to City: City of Moorpark
Attn: City Manager
799 Moorpark Avenue
Moorpark, California 93021
Telephone No.: (805) 517-6212
Facsimile No.: (805) 532-2528
If to Developer: Area Housing Authority of the County of Ventura
Attn: Executive Director
1400 West Hillcrest Drive
Newbury Park, CA 91320
Phone No.: (805) 480-9991
Facsimile No.: (805) 480-9121
Any such notices shall be deemed received upon the earlier of actual receipt,
one (1) business day following delivery to the courier service, or forty-eight (48) hours
after deposit in the mail, as required hereinabove; (provided that any notice received on
Saturday, Sunday, or a state or national holiday, or received after 5:00 p.m. on any
business day shall be deemed received on the next business day thereafter). The
person and the place to which notices are to be mailed may be changed by either Party
by notice to the other in accordance with this Section.
9.2 Conflict of Interest.
No member, official or employee of the City shall have any direct or indirect
interest in this Agreement, nor participate in any decision relating to the Agreement
which is prohibited by law.
9.3 Developer's Covenants, Representations and Warranties.
Developer covenants, represents and warrants to City as follows:
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9.3.1 Warranty Against Payment of Consideration for Agreement.
Developer has not paid or given, and will not pay or give, any third person
any money or other consideration for obtaining this Agreement, other than the normal
cost of conducting business and the costs of professional services such as architects,
engineers, attorneys, and brokers' commissions payable in connection with the
construction and sale of the Improvements on the Site.
9.3.2 Organization and Standing of Developer.
Developer is a limited partnership and is in good standing under the laws
of the State of California. Developer has all requisite power and authority to enter into
and perform its obligations under this Agreement.
9.3.3 Authorization and Consents.
The execution, delivery and performance of this Agreement is consistent
with Developer's articles of organization and operating agreement and has been duly
authorized by all necessary action of Developer's members and managers. All
consents, approvals and authorizations of all applicable governmental authorities, other
than City/City, and all consents or approvals of Developer's members and managers
required in connection with the execution and delivery by Developer of this Agreement
will have been obtained on or before the Effective Date of this Agreement.
9.3.4 Due and Valid Execution.
This Agreement and all other instruments to be executed in connection
herewith, will, as of the date of their execution, have been duly and validly executed by
Developer.
9.3.5 Tax Returns and Reports.
All filings, reports and tax returns of Developer which are required to be
made or filed with any governmental authority with respect to the Site have been duly
made and filed, and all taxes, assessments, fees and other governmental charges upon
Developer or upon the Site related to this Project, which are due and payable by
Developer, have been paid, other than those which are presently payable without
penalty or interest, or which Developer is in good faith contesting.
9.3.6 Litigation and Compliance.
To the best of Developer's knowledge, there are no suits, other
proceedings or investigations pending or threatened against, or affecting the business
or the properties of Developer or any of its members which could materially impair its
ability to perform its obligations under this Agreement, nor is Developer or any of its
members in violation of any laws or ordinances which could materially impair
Developer's ability to perform its obligations under this Agreement.
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9.3.7 Default.
To the best of Developer's knowledge, there are no facts now in existence
which would, with the giving of notice or the lapse of time, or both, constitute a "Default"
hereunder, as described in Section 8.1.
9.3.8 Notice From Governing Jurisdiction.
To the best of Developer's knowledge, Developer has not received any
noticefrom any governing jurisdiction of any violation of laws and ordinances with
respect to the Site.
9.3.9 Adverse Conditions.
To the best of Developer's knowledge, there is no adverse condition or
circumstance, pending or threatened litigation, governmental action, or other condition
which could prevent or materially impair Developer's ability to develop the Site as
contemplated by the terms of this Agreement.
9.4 City's Covenants, Representations and Warranties.
City covenants, represents and warrants to Developer as follows:
9.4.1 Authority.
City is a public body, corporate and politic, existing pursuant to the
California Community Redevelopment Law (California Health and Safety Code Section
33000), which has been authorized to transact business pursuant to action of the City.
City has the full right, power and authority to sell and convey the Site and undertake all
obligations as provided herein. The execution, delivery and performance of this
Agreement by the City has been fully authorized by all requisite actions on behalf of the
City.
9.4.2 Foreign Investment in Real Property Tax Act ("FIRPTA").
City is not a "foreign person" within the parameters of FIRPTA or any
similar state statute, or is exempt from the provisions of FIRPTA or any similar state
statute, or City has complied and will comply with all applicable requirements under
FIRPTA or any similar state statute.
9.4.3 No Conflict.
To the best of City's knowledge, City's execution, delivery and
performance of this Agreement will not constitute a default or a breach under any
contract, agreement or order to which City is a party or by which it is bound, and no
joinder, consent of waiver of or by any third party is necessary to permit the
consummation by City of the transaction contemplated by this Agreement.
-41- 52
9.4.4 Litigation.
There are no lawsuits or other proceedings filed or, to the best of City's
knowledge, threatened with respect to the ownership, operation or environmental
condition of the Site or any part thereof (including disputes with mortgagees,
governmental authorities, utility companies, contractors, adjoining landowners or
suppliers of goods and services) or with respect to the title to or proposed development
of the Site which could adversely affect City's performance hereunder.
9.4.5 Violation.
To the best of City's knowledge, there are no outstanding violations of any
health, safety, pollution, zoning or other laws, ordinances, rules or regulations with
respect to the Site which have not heretofore been entirely corrected. In the event City
hereafter acquires actual knowledge of any such violations, City shall promptly provide
Developer with copies of all documents evidencing such violation and, if such violation
was caused by City, or any person or entity acting on its behalf, City shall cure such
violation prior to the Close of Escrow. To the best of City's knowledge, based on
reasonable inquiry, no Hazardous Materials have been or are located in, on, under or
adjacent to the Site or any portion thereof.
9.4.6 No Commitments.
The City has not made, and, without the approval of the Developer, will
not make, any commitments to any governmental authorities, utility company, school
board, church or other religious body, or any homeowner or homeowner's association,
or to any other organization, group or individual relating to the Site which would impose
any obligation on the Developer, or its successors or assigns, after the Conveyance to
make any contributions of money, dedications of land or grant of easements or rights of
way, or to construct, install or maintain any improvements of a public or private nature
on or off the Site.
9.4.7 No City Bankruptcy.
City is not the subject of a bankruptcy proceeding.
9.4.8 No Other Agreements.
To the best of City's knowledge, no other person has claimed title to,
possession of or right to use the Site or any right thereto not disclosed in the Title
Commitment. City has not entered into any lease or other agreement for possession or
sale with any person or entity (except Developer) pursuant to which such person or
entity has any interest or future right or interest to occupancy, possession or use of all
or any portion of the Site, except as disclosed in the Due Diligence Materials and the
Title Commitment as defined in Section 5.5.1 and 5.3.3 respectively, in this Agreement.
-42- 5 3
9.4.9 Delivery of Due Diligence Materials.
All Due Diligence Materials required by this Agreement to be delivered to
Developer have been so delivered. To the best of City's knowledge, all Due Diligence
Materials delivered by City to Developer are complete and accurate and do not contain
any untrue statement of material fact or omit to state a material fact necessary to make
the statements or facts contained therein not misleading.
9.4.10 No Conveyance.
City will not convey any interest in the Site, and City will not cause or
consent to the recordation against the Site of any additional Hens, encumbrances,
covenants, conditions, easements, rights of way or similar matters after the date of this
Agreement which will not be eliminated prior to the Close of Escrow.
9.4.11 No Alterations.
Except as otherwise permitted by this Agreement, City will not make or
allow any material alterations to the Site unless required by law without Developer's
prior written consent, which consent may be withheld in Developer's sole and absolute
discretion. The Site shall be delivered by City to Developer in the As Is Condition.
9.4.12 Payment for Work; Assurance of Funding.
As of the Closing, City will have paid for all work performed by third parties
on or in connection with the Site on behalf or at the direction of City or its agents or
representatives, including all labor, goods, materials and services related thereto, and
the Site will not be subject to encumbrance by any mechanics, laborer, materialmen or
other like liens with respect thereto. City hereby represents and warrants to Developer
that it has and will continue to have sufficient funds in City's low and moderate income
housing account to fully fund City's obligations hereunder, including payment of the City
Assistance when and as required.
Compliance With Laws; Indemnity; Waiver. The Developer shall construct
the Improvements in conformity with all applicable Governmental Requirements,
including all applicable state labor laws and standards, all applicable Public Contract
Code requirements, the City's applicable zoning and development standards, building,
plumbing, mechanical and electrical codes, all other applicable provisions of the City's
Municipal Code; and all applicable disabled and handicapped access requirements,
including the Americans With Disabilities Act, 42 U.S.C. Section 12101, et seq.,
Government Code Section 4450, et seq., Government Code Section 11135, et seq.,
and the Unruh Civil Rights Act, Civil Code Section 51, et seq. The Developer warrants
and represents in connection with the foregoing that the Developer is a sophisticated,
experienced developer of projects similar to the Project and is fully conversant with, and
informed, concerning the Governmental Requirements with which the Developer must
comply pursuant to this Section.
-43- 54
The Developer shall defend, indemnify and hold harmless the City, the
City and their respective elected officials, officers, employees, agents and
representatives from and against any and all present and future liabilities, obligations,
orders, claims, damages, fines, penalties and expenses (including attorneys' fees and
costs) (collectively, "Claims"), arising out of or in any way connected with the
Developer's obligation to comply with all Governmental Requirements with respect to
the development and construction of the Improvements, including all applicable state
labor laws and standards and the Public Contract Code, except to the extent such
Claims result from actions of the City or the City, or their respective elected officials,
officers, employees, agents or representatives, which prevent the Developer from
complying with Governmental Requirements. If, at any time, the Developer believes
that the City or the City, or their respective elected officials, officers, employees, agents
or representatives, are preventing the Developer from complying with Governmental
Requirements, then the Developer shall provide notice to the City of the basis of such
conclusion by the Developer to enable the City and/or the City to take such actions as
may be necessary or appropriate to enable the Developer to comply with Governmental
Requirements.
9.5 Incorporation of Attachments.
All Attachments referred to in this Agreement are hereby incorporated herein by
such reference and made a part hereof.
9.6 Context and Construction.
When the context and construction so require, all words used in the singular
herein shall be deemed to have been used in the plural, and the masculine shall include
the feminine and neuter and vice versa. Whenever the word "day" or "days" is used
herein, such shall refer to calendar day or days, unless otherwise specifically provided
herein. Whenever a reference is made herein to a particular Section of this Agreement,
it shall mean and include all subsections and subparts thereof. If the date for
performance of any action required by this Agreement falls on a weekend or State of
California or national holiday, the date for performance of that action shall be extended
to the next business day.
9.7 No Obligation to Third Parties.
This Agreement shall not be deemed to confer any rights upon, nor obligate
either of the Parties to this Agreement to, any person or entity not a Party to this
Agreement, except that (i) with respect to a lender owning or holding a mortgage
encumbering the Site which is authorized by this Agreement, such lender shall be
entitled to the benefit of the lender protection rights included herein expressly for its
benefit, and (ii) with respect to the estoppel certificate provisions set forth in Section
9.19 below, the third parties described therein shall be entitled to rely upon the
provisions expressly provided for their benefit in that Section.
-44- 55
9.8 Counterparts; Facsimile Signatures.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which shall constitute one and the same
instrument. The Parties specifically agree that facsimile signatures on this Agreement
shall be legally binding and that each Party is entitled and authorized to rely on the
facsimile signature of the other hereon as if it were an original signature.
9.9 Amendments in Writing.
The provisions of this Agreement may not be amended or altered except by a
written instrument fully executed by each of the Parties hereto.
9.10 Further Acts.
Each of the Parties shall execute such other and further documents and do such
further acts as may be reasonably required to effectuate the intent of the Parties and
carry out the terms of this Agreement.
9.11 Severability.
If any clause, provision, subsection, section, or article of this Agreement shall be
determined to be invalid by any court of competent jurisdiction, then the parties agree
to:
A. promptly meet and negotiate a substitute for such clause, provision,
section, or article which shall, to the greatest extent legally permissible, effect the intent
of the parties therein;
B. if necessary or desirable to accomplish item A above, apply to the court
having declared such invalidity for a judicial construction of the invalidated portion of this
Agreement; and
C. negotiate such changes in, substitutions for or additions to the remaining
provisions of this Agreement as may be necessary in addition to and in conjunction with
items A and B above to effect the intent of the parties in the invalid provision. The
invalidity of such clause, provision, subsection, section, or article shall not affect any of
the remaining provisions hereof, and this Agreement shall be construed and enforced
as if such invalid portion did not exist.
9.12 Waiver.
The waiver by either Party of the breach of any provision of this Agreement shall
not be deemed a waiver of any subsequent breach whether of the same or another
provision of this Agreement.
-45- 5 6
9.13 Authority.
Each person executing this Agreement on behalf of Developer or City hereby
represents and warrants (i) such person's authority to do so, (ii) that such authority has
been duly and validly conferred by that entity's governing body or board, and (iii) that
said entity has full right and authority to enter into this Agreement.
9.14 Enforced Delay; Extension of Times for Performance (Force Majeure).
In the event that any of the Parties to this Agreement are prevented from
proceeding with any of their obligations under this Agreement by reason of events that
are beyond that Party's reasonable control, such as supernatural causes, strikes,
lockouts, earthquake, war, insurrection, riots, floods, acts of God, acts of the public
enemy, epidemics, quarantine restrictions, freight embargoes, unusually severe
weather, delays or inaction of independent contractors, delays caused by a shortage of
materials or skilled labor due to circumstances beyond Developer's control, delays
caused by actions or omissions of the City or any other public or governmental entity
(provided that acts or omissions of the City shall not excuse performance by the City),
delays in the issuance of any governmental approvals or authorizations, litigation
brought against the Site or a Party without that Party's consent, including a land use or
entitlement challenge, remediation of Hazardous Materials located upon the Site,
unanticipated conditions of construction, or similar events which are beyond that Party's
reasonable control, then that Party shall be entitled to an additional grace period pr
extension of time in which to perform the obligations whose performance is precluded
by such event. The extension of time for any cause permitted under this Section 9.15
shall be limited to the period of the enforced delay and shall commence to run from the
time of the commencement of the cause, provided that Developer has notified City in
writing of such cause within ten (10) days of the commencement. Notwithstanding the
foregoing, Developer's inability to secure satisfactory financing shall not entitle
Developer to an extension of time to perform.
9.15 Record of Extensions; Effect of Extension on Schedule of Performance.
Any Party is also entitled, as often as reasonably required, to request in writing
that any other Party confirm the then applicable deadlines for performance of each
Party's obligations or the exercise of each Party's rights under this Agreement, and
each Party shall, within twenty (20) days after receipt of such a written request, respond
thereto.
9.16 Administrative Extensions; Approval of Items.
The City Manager is authorized to approve extensions of time hereunder
provided that such extension is in writing and is signed by the City Manager and
Developer.
This Agreement shall be administered by City's Manager, or his designated
representative, following approval of this Agreement by City. The City Manager (or his
-46- 57
authorized representative) shall have the authority to issue interpretations, waive
provisions and enter into amendments of this Agreement on behalf of City so long as
such actions do not substantially change the uses or development permitted on the Site,
or substantially add to the costs of City as specified herein as agreed to by the City
Council. Without limitation of the foregoing, the City Manager is authorized to provide
any of the approvals required by Sections 2.3, 6.1.3, 6.2.2 or 6.2.3.
9.17 Statement of Compliance.
Within ten (10) days following receipt of any written request which either City or
Developer may make from time to time, the other Party shall execute and deliver to the
requesting Party a statement or estoppel certificate certifying that: (1) this Agreement is
unmodified and in full force and effect, if such be the case, or, if there have been
modifications hereto, that this Agreement is in full force and effect, as modified, and
stating the date and nature of such modifications; (2) to the knowledge of the certifying
Party, there are no current Defaults under this Agreement or specifying the dates and
nature of any such Defaults; and (3) any other reasonable information requested. The
City Manager is hereby authorized to execute any certificate requested by Developer
under this Section.
9.18 Approvals.
Except as otherwise provided herein and except with respect to matters that are
required to be presented to the City Council for decision or that the City Manager elects
to take to the City Council for decision, the time within which City or Developer has to
respond to a request for any consent or approval under this Agreement shall be thirty
(30) days following receipt of the other party's written request and all materials required
by this Agreement or otherwise reasonably requested by the party receiving such
request in order to enable it to act thereon. With respect to any such additional matters
that the party receiving such request may reasonably require, such party shall notify the
other party of such request within fifteen (15) days of its receipt of the request for
consent or approval. In the event of any disapproval, the party receiving such request
shall, concurrently with the delivery of notice of such disapproval, inform the other party
in writing of the reasons for disapproval and, if applicable, the conditions upon which the
party receiving such request may approve such request. The provisions of this Section
shall not apply to consents or approvals under any provisions of this Agreement that
expressly set forth the procedure for submission and processing of any requests for
approval (and the specific timeframes applicable thereto), as those Sections already
specify the procedure to obtain another party's consent or approval with respect to such
item. Except as otherwise expressly provided herein, any consent or approval provided
for by this Agreement shall not be unreasonably withheld, conditioned or delayed by the
party providing that consent or approval.
•
-47- 58
9.19 Naming of Project
Developer acknowledges the City Council shall have sole discretion for naming
the Project. Developer also agrees not to change the name of the Project without
written approval from the City Council.
9.20 Venue
This Agreement is made, entered into, and executed in Moorpark, Ventura
County, California, and any action filed in any court of law for arbitration of the
interpretation, enforcement and/or otherwise of the terms, covenants and conditions
referred to herein shall be filed in the applicable court in Ventura County, California.
9.21 Construction and Interpretation of Agreement
The parties hereto acknowledge and agree that this Agreement has been
prepared jointly by the parties and has been the subject of arm's length and careful
negotiation over a considerable period of time, that each party has reviewed this
Agreement with legal counsel, and that each party has the requisite experience and
sophistication to understand, interpret and agree to the particular language of the
provisions of this Agreement. Accordingly, in the event of an ambiguity in or dispute
regarding the interpretation of this Agreement, notwithstanding Civil Code Section 1654,
this Agreement shall not be interpreted or construed against the party preparing it, and
instead other rules of interpretation and construction shall be utilized.
-48- 59
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
CITY:
CITY OF MOORPARK
By:
Steven Kueny
City Manager
ATTEST:
By:
Maureen Benson
City Clerk
DEVELOPER:
AREA HOUSING AUTHORITY OF THE
COUNTY OF VENTURA,
a public body, corporate and politic
By:
Print Name:
Title:
-49- 6 0
ATTACHMENT NO. 1
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-51- 63
ATTACHMENT NO. 2
SITE LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
-52- 64
ATTACHMENT NO. 3
SCHEDULE OF PERFORMANCE
[DATES TO BE APPROVED BY CITY MANAGER AND INSERTED PRIOR TO THE
EXECUTION OF THE DDAJ
1. Submission of Disposition and Development Agreement. Developer shall
submit to the City a copy of the Disposition and Development Agreement duly
executed by the Developer.
On or before , 2015
2. City Approval of Disposition and Development Agreement. City shall
approve or disapprove the Disposition and Development Agreement.
Within 30 days after Developer's submission to the City of an executed
Disposition and Development Agreement.
3. Submission of Construction Drawings for Improvements. Developer shall
submit to the City complete Construction Drawings for the Improvements.
Within 30 days after City Council approval of the proposed Design Development
Application.
4. Developer and City Response. Developer shall respond to all requests by the
City for additional information and/or revisions to plans.
Developer will respond to any request within 30 days. City will respond to any
submission within 30 days.
5. Development Services Review of Construction Drawings. The City
Community Development Department shall review the Construction Drawings for
the improvements.
Within 30 days after submittal.
6. Revisions of Construction Drawings by Developer. Developer shall prepare
revised Drawings for the Construction Improvements as necessary, and resubmit
them to the Community Development Department for review.
Within 30 days after receipt of Community Development Department comments.
7. Final Review of Complete Construction Drawings. The City Community
Development Department shall approve or disapprove the revisions submitted by
Developer for the improvements, and the Developer shall be ready to obtain
-53- 6 5
grading and building permits, provided that the revisions necessary to
accommodate the Department's comments have been made.
Within 10 days after submittal by Developer.
8. Opening of Escrow for Site. The City shall open Escrow with Escrow Agent.
Within 30 days after execution of Agreement.
9. Conditions Precedent to Closing. Developer and City shall satisfy (or waive)
all of their respective Conditions Precedent to Closing.
Not later than 30 days prior to scheduled date of escrow closing.
10. Close of Escrow. City shall convey Site to the Developer.
As soon as possible after the Satisfaction of all Conditions Precedent to the
Closing has occurred (within 30 days thereafter), but in no event later than December
31, 2016.
11. Commencement of Construction of Improvements. Developer shall
commence grading of the Site and construction of the Improvements.
Within 30 days following Closing.
12. Completion of Construction of Improvements. Developer shall complete
construction of the Improvements.
Within 12 months following commencement of construction of the Improvements.
NOTE: All days are calendar days in this Schedule of Performance. All days
failing on a weekend or day on which the City offices are not open shall be
extended to the next day on which City offices are open. This •Schedule of
Performance may be amended by written mutual consent of the parties to the
Agreement.
-54- 6 6
ATTACHMENT NO. 4
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
Documentary Transfer Tax: $
Based on full value of property conveyed
GRANT DEED
For valuable consideration, receipt of which is hereby acknowledged,
The CITY OF MOORPARK (the "City"), hereby grants to the Area Housing
Authority of the County of Ventura, a public body, corporate and politic ("Developer"),
the real property hereinafter referred to as the "Site", described in Exhibit A attached
hereto and incorporated herein, subject to the existing easements, restrictions and
covenants of record described there.
1. City excepts and reserves from the conveyance herein described
all interest of the City in oil, gas, hydrocarbon substances and minerals of every kind
and character lying more than five hundred (500) feet below the surface, together with
the right to drill into, through, and to use and occupy all parts of the Site lying more than
five hundred (500) feet below the surface thereof for any and all purposes incidental to
the exploration for and production of oil, gas, hydrocarbon substances or minerals from
said Site or other lands, but without, however, any right to use either the surface of the
Site or any portion thereof within five hundred (500) feet of the surface for any purpose
or purposes whatsoever, or to use the Site in such a manner as to create a disturbance
to the use or enjoyment of the Site.
2. City excepts and reserves from the conveyance herein described all
interest of the City in air space above Thirty-Five (35) feet above the surface (the "Air
Space").
3. The Site is conveyed in accordance with and subject to the
Disposition and Development Agreement entered into between City and Developer
dated 2015 (the "DDA"), a copy of which is on file with the City at its
-55- 67
offices as a public record and which is incorporated herein by reference. The DDA
generally requires the Developer to construct a 24 unit, 100% affordable, for rent,
residential apartment complex having a mixture of two and three bedroom units
("Improvements"). The Improvements consists of nineteen 2-bedroom units and five 3-
bedroom units. Each unit includes one bathroom and a private balcony, patio, or yard.
All of the units shall be affordable to and rented by very-low and low-income
households. Of the 24 units, five (5) will be restricted to lease at an affordable housing
cost to low income households, nineteen (19) will be restricted to lease at an affordable
housing cost to very low income households. One (1) of the five (5) units will be utilized
by an onsite low income manager, which is considered a low income unit under the
DDA.
The Improvements includes a number of common amenities, including a tot lot,
community garden, passive open space, community room, common laundry room for
the apartments, and in house laundry facilities in the townhomes. An elevator provides
access to the second and third floors of the apartment building.
Developer will maintain 100% ownership of the Property and continue to
utilize the Property for affordable housing purposes pursuant to the approved Planned
Development Permit No. 2015-01.
All terms used herein shall have the same meaning as those used in the DDA.
4. The Developer covenants and agrees for itself, its successors, its assigns,
and every successor in interest to the Site or any part thereof, that upon the date of this
Grant Deed and during construction and thereafter, the Developer shall devote the Site
to the uses specified in the Planned Development Permit No. 2015-01 and the DDA for
the periods of time specified therein. All uses conducted on the Site, including, without
limitation, all activities undertaken by the Developer pursuant to this Agreement, shall
conform to the Planned Development Permit No. 2015-01, the DDA and all applicable
provisions of the Moorpark Municipal Code. The foregoing covenants shall run with the
land.
5. Developer herein covenants by and for itself, its successors and assigns,
that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision
(m) and paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure, or
enjoyment of the premises herein conveyed, nor shall the grantee or any person
claiming under or through him or her, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or
occupancy of tenants, lessees, subtenants, sublessees, or vendees in the premises
herein conveyed. The foregoing covenants shall run with the land.
-56- 68
Notwithstanding the immediately preceding paragraph, with respect to familial
status, the immediately preceding paragraph shall not be construed to apply to housing
for older persons, as defined in Section 12955.9 of the Government Code. With respect
to familial status, nothing in the immediately preceding paragraph shall be construed to
affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code, relating to
housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of the Civil
Code and subdivisions (n), (o), and (p) of Section 12955 of the Government Code shall
apply to the immediately preceding paragraph.
All deeds, leases or contracts entered into by Developer relating to the Project
shall contain or be subject to substantially the following nondiscrimination or
nonsegregation clauses:
(a) In deeds: "The Grantee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through them, that there shall be no discrimination against or
segregation of, any person or group of persons on account of any basis listed in
subdivision (a) or (d) of Section 12955 of the Government Code, as those bases are
defined in Sections 12926, 12926.1, subdivision (m) and paragraph (I) of subdivision (p)
of Section 12955, and Section 12955.2 of the Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein
conveyed, nor shall the grantee or any person claiming under or through him or her,
establish or permit any practice or practices of discrimination or segregation with
reference to the selection, location, number, use or occupancy of tenants, lessees,
subtenants, sublessees, or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land.
"Notwithstanding the immediately preceding paragraph, with respect to •
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government
Code shall apply to the immediately preceding paragraph."
(b) In leases: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
claiming under or through him or her, and this lease is made and accepted upon and
subject to the following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (I) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
-57- 69
himself or herself, or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein lease.
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Sections 12955 of the Government
Code shall apply to the immediately preceding paragraph."
In contracts: "There shall be no discrimination against or segregation of,
any person or group of persons on account of any basis listed in subdivision (a) or (d) of
Section 12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraphs (I) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the sale, lease, sublease, transfer, use,
occupancy, tenure, or enjoyment of the premises which are the subject of this
Agreement, nor shall the grantee or any person claiming under or through him or her,
establish or permit any practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants,
sublessees, or vendees in the premises herein conveyed. The foregoing covenants
shall run with the land."
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Section 12955 of the Government
Code shall apply to the immediately preceding paragraph."
The foregoing covenants shall, without regard to technical classification
and designation, be binding for the benefit and in favor of City, its successors and
assigns, any occupants of the Project, and any successor in interest to the Project. The
covenants against discrimination shall remain in effect in perpetuity.
6. The City has the right, at its election, to reenter and take
possession of the Site, with all improvements thereon, and terminate and revest in the
City the estate conveyed to the Developer if after the Closing and prior to the issuance
of the Release of Construction Covenants, if the Developer (or its successors in
interest) shall:
-58- 70
a. abandon or substantially suspend construction of the Improvements
required by the DDA for a period of thirty (30) days after written notice thereof from the
City subject to the provisions of Section 602; or
b. contrary to the provisions of the DDA transfer or suffer any involuntary
transfer of the Site or any part thereof in violation of the DDA.
Such right to reenter, terminate and revest shall be subject to and be limited by and
shall not defeat, render invalid or limit:
a. Any mortgage or deed of trust permitted by the DDA; or
b. Any rights or interests provided in the DDA for the protection of the
holders of such mortgages or deeds of trust.
Upon the revesting in the City of title to the Site as provided in the DDA,
the City shall, pursuant to its responsibilities under state law, use its reasonable efforts
to resell the Site as soon and in such manner as the City shall find feasible and
consistent with the objectives of such law, as it exists or may be amended, to a qualified
and responsible party or parties (as determined by the City) who will assume the
obligation of making or completing the Improvements, or such improvements in their
stead as shall be satisfactory to the City and in accordance with the uses specified for
such Site as provided in the City's zoning ordinance. Upon such resale of the Site, the
net proceeds thereof after repayment of any mortgage or deed of trust encumbering the
Site which is permitted by this Agreement shall be applied to reimburse the City, on its
own behalf or on behalf of the City, all costs and expenses incurred by the City,
excluding City and City staff costs, but specifically, including, but not limited to, any
expenditures by the City or the City in connection with the recapture, management and
resale of the Site or part thereof (but less any income derived by the City from the Site
or part thereof in connection with such management); all taxes, assessments and water
or sewer charges with respect to the Site or part thereof which the Developer has not
paid (or, in the event that Site is exempt from taxation or assessment of such charges
during the period of ownership thereof by the City, an amount, if paid, equal to such
taxes, assessments, or charges as would have been payable if the Site were not so
exempt); any payments made or necessary to be made to discharge any encumbrances
or liens existing on the Site or part thereof at the time or revesting of title thereto in the
City, or to discharge or prevent from attaching or being made any subsequent
encumbrances or liens due to obligations, defaults or acts of the Developer, its
successors or transferees; any expenditures made or obligations incurred with respect
to the making or completion of the improvements or any part thereof on the Site, or part
thereof; and any amounts otherwise owing the City, and in the event additional
proceeds are thereafter available, then any balance remaining after such
reimbursements shall be retained by the City as its property. The rights established in
this Section 6 are not intended to be exclusive of any other right, power or remedy, but
each and every such right, power, and remedy shall be cumulative and concurrent and
shall be in addition to any other right, power and remedy authorized herein or now or
hereafter existing at law or in equity. These rights are to be interpreted in light of the
-59- 71
fact that the City will have conveyed the Site to the Developer for redevelopment
purposes, particularly for development of the Improvements, and not for speculation in
undeveloped land.
7. No violation or breach of the covenants, conditions, restrictions,
provisions or limitations contained in this Grant Deed shall defeat or render invalid or in
any way impair the lien or charge of any mortgage or deed of trust or security interest
permitted by paragraph 5 of this Grant Deed; provided, however, that any subsequent
owner of the Site shall be bound by such remaining covenants, conditions, restrictions,
limitations and provisions, whether such owner's title was acquired by foreclosure, deed
in lieu of foreclosure, trustee's sale or otherwise.
8. Developer agrees to utilize the Site in accordance with DDA for the
Life of the Project, but in no event less than fifty-five (55) years. If Developer no longer
utilizes the Site in accordance with the DDA and with City of Moorpark PD 2015-01,
then the Site shall be sold to the City for $1.00.
9. All covenants contained in this Grant Deed shall be covenants
running with the land for the periods set forth therefore in the DDA. Every covenant
contained in this Grant Deed against discrimination contained in paragraph 5 of this
Grant Deed shall remain in effect in perpetuity.
10. All covenants without regard to technical classification or
designation shall be binding for the benefit of the City, and such covenants shall run in
favor of the City for the entire period during which such covenants shall be in force and
effect, without regard to whether the City is or remains an owner of any land or interest
therein to which such covenants relate. The City, in the event of any breach of any such
covenants, shall have the right to exercise all the rights and remedies and to maintain
any actions at law or suits in equity or other proper proceedings to enforce the curing of
such breach.
11. Both City, its successors and assigns, and Developer and the
successors and assigns of Developer in and to all or any part of the fee title to the Site
shall have the right with the mutual consent of the City to consent and agree to changes
in, or to eliminate in whole or in part, any of the covenants, easements or restrictions
contained in this Grant Deed without the consent of any tenant, lessee, easement
holder, licensee, mortgagee, trustee, beneficiary under a deed of trust or any other
person or entity having any interest less than a fee in the Site. However, Developer and
City are obligated to give written notice to and obtain the consent of any first mortgagee
prior to consent or agreement between the parties concerning such changes to this
Grant Deed. The covenants contained in this Grant Deed, without regard to technical
classification, shall not benefit or be enforceable by any owner of any other real
property, or any person or entity having any interest in any other such realty.
-60- 7 2
CITY:
CITY OF MOORPARK
By:
Steven Kueny
City Manager
ATTEST:
By:
Maureen Benson
City Clerk
-61- 73
EXHIBIT "A"
LEGAL DESCRIPTION OF SITE
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THIS PAGE LEFT BLANK
INTENTIONALLY
-63- 75
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, , Notary Public
personally appeared
who proved to me on the basis of satisfactory evidence tt
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/the!
executed the same in his/her/their authorized capacity, anc
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws o
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL •
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
O Individual
❑ Corporate Officer—Title(s):
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❑ Partner— 0 Limited 0 General
❑Attorney in Fact
O Trustee
0 Guardian or Conservator
❑ Other:
Signer is Representing:
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, , Notary Public
personally appeared
who proved to me on the basis of satisfactory evidence tc
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/the)
executed the same in his/her/their authorized capacity, anc
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information be/ow is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
-65- 7 7
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):
❑ Partner— 0 Limited 0 General
❑Attorney in Fact
0 Trustee
O Guardian or Conservator
❑ Other:
Signer is Representing:
-66- 7 8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
-67- 7 9
ATTACHMENT NO. 5
SCOPE OF DEVELOPMENT
The Developer shall construct a 24 unit, 100% affordable, for rent, residential project
having a mixture of two and three bedroom units ("Project"). The Project consists of
nineteen 2-bedroom units and five 3-bedroom units. Each unit includes one bathroom
and a private balcony, patio, or small yard (townhome units).
All of the units shall be affordable to and rented by very-low and low-income
households. Of the 24 units, five (5) will be restricted to lease at an affordable housing
cost to low income households, nineteen (19) will be restricted to lease at an affordable
housing cost to very low income households, and one (1) of the five (5) units will be
utilized by a low income onsite manager, which shall be a low income unit under the
DDA.
The Project includes a number of common amenities, including a tot lot, community
garden, passive open space, community room, common laundry room for the
apartments, and in house laundry facilities in the townhomes. An elevator provides
access to the second and third floors of building A.
All development of the Project shall be in accordance with approved City of Moorpark
Planned Development Permit No. 2015-01 and all permits and fees required by the City,
County of Ventura and other governmental agencies with jurisdiction over the
Improvements, including the State General Construction Storm Water Permit's Storm
Water Pollution Prevention Plan requirements and any other requirements therein.
-68- 80
ATTACHMENT NO. 6
OFFICIAL BUSINESS
Document entitled to free
Recording per Government
Code Sections 6103 and 27383
Recording Requested by,
Mail Tax Statements to,
and When Recorded Mail to:
SPACE ABOVE THIS LINE
FOR RECORDER'S USE
CERTIFICATE OF COMPLETION
THIS CERTIFICATE OF COMPLETION (the "Certificate") is made as of
20_ by the CITY OF MOORPARK (the "City"), in favor of [Area
Housing Authority of the County of Ventura, a public body corporate and politic] (the
"Developer"), as of the date set forth below.
RECITALS
A. The City and the Developer have entered into that certain
Disposition and Development Agreement (the "DDA") dated , 2015,
concerning the redevelopment of certain real property situated in the City of Moorpark,
California as more fully described in Exhibit "A" attached hereto and made a part hereof.
B. As referenced in Section 6.12 of the DDA, the City is required to
furnish the Developer or its successors with a Certificate upon completion of
construction of the Improvements, which Certificate is required to be in such form as to
permit it to be recorded in the Recorder's office of Ventura County. This Certificate is
conclusive determination of satisfactory completion of the construction and development
required by the DDA.
C. The City has conclusively determined that such construction and
development has been satisfactorily completed.
NOW, THEREFORE, the City hereby certifies as follows:
1. The Improvements to be constructed by the Developer have been
fully and satisfactorily completed in conformance with the DDA. Any operating
requirements and all use, maintenance or nondiscrimination covenants contained in the
DDA shall remain in effect and enforceable according to their terms.
-69- 81
2. Nothing contained in this instrument shall modify in any other way
any other provisions of the DDA.
3. This Certificate is not a notice of completion as referred to in
Section 3093 of the California Civil Code.
4. This Certificate shall inure to the benefit of Developer, its
successors and assigns.
IN WITNESS WHEREOF, the City has executed this Release as of the date set forth
above.
CITY OF MOORPARK
By:
Print Name:
Title:
ATTEST:
By:
Maureen Benson, City Clerk
-70- 82
EXHIBIT "A"
LEGAL DESCRIPTION
-71- 83
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, • _ , Notary Public
personally appeared
who proved to me on the basis of satisfactory evidence tc
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, anc
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws o:
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
RIGHT THUMBPRINT
OF SIGNER
Top of thumb here
Signer's Name:
❑ Individual
❑ Corporate Officer—Title(s):
-72- 8 4
❑ Partner— ❑ Limited 0 General
❑Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
❑ Other:
Signer is Representing:
•
•
-73- 8 5
ATTACHMENT NO. 7
AFFORDABLE HOUSING AGREEMENT
AND
AFFORDABLE HOUSING IMPLEMENTATION
AND
RENTAL RESTRICTION PLAN
[BEHIND THIS PAGE]
-74- 8 6
OFFICIAL BUSINESS
Document entitled to free
recording per Government Code
Sections 6103 and 27383
Recording Requested By:
CITY OF MOORPARK
799 Moorpark Avenue
Moorpark, California 93021
Attention: City Clerk
SPACE ABOVE THIS LINE FOR RECORDERS USE
AFFORDABLE HOUSING AGREEMENT
by and between
CITY OF MOORPARK
and
AREA HOUSING AUTHORITY OF THE COUNTY OF VENTURA
Dated as of , 2015
87
-1-
AFFORDABLE HOUSING AGREEMENT
THIS AFFORDABLE HOUSING AGREEMENT (this "Agreement") is to be
effective as of , 2015, regardless of the date of actual execution hereof,
and is entered into by and between the CITY OF MOORPARK ("City") and the AREA
HOUSING AUTHORITY OF THE COUNTY OF VENTURA, a public body, corporate
and politic ("Owner").
WITNESSETH:
RECITALS
WHEREAS, the City and Owner have previously entered into a Disposition and
Development Agreement dated , 2015 recorded as Instrument No.
in the Official Records of the County of Ventura on
(the "DDA") pursuant to which Owner will construct a
residential development consisting of 24 apartments (the "Project") on approximately
1.2 acres (the "Property"), described more specifically on Exhibit "1" attached hereto
and incorporated herein by reference, which is located within the City of Moorpark;
WHEREAS, to assist in the production of affordable housing, on May 26, 2015,
the City of Moorpark Planning commission approved Planned Development Permit No.
2015-01 ("PD") for the Project. The PD is sometimes referred to herein as the "Project
Approvals";
WHEREAS, this Agreement and the Affordable Housing Implementation and
Rental Restriction Plan (incorporated herein) shall be senior in priority, except where
federal regulations may require subordination to any regulatory agreement associated
with federal funding for this project and except as follows;
WHEREAS, notwithstanding any other provision of this Agreement, this
Agreement shall not diminish or affect the rights of any First Lender, and the provisions
of this Agreement shall be subordinate to the lien of any First Mortgage and shall not
impair the rights of the First Lender or such lenders' assignee or successor-in-interest to
exercise its remedies under a First Mortgage in the event of default under the First
Mortgage by the Owner or to exercise its remedies. Such remedies under the First
Mortgage include, but are not limited to, the right of foreclosure or acceptance of a deed
or assignment in lieu of foreclosure;
WHEREAS, Owner has agreed to rent or lease or hold available for rent or
occupancy one hundred percent (100%) of the twenty-four (24) units to persons or
households of Very Low or Low Income, all at an Affordable Rent, all as defined herein,
and to enter into this Affordable Housing Agreement with the City , which incorporates
the Affordable Housing Implementation and Rental Restriction Plan (attached hereto as
Exhibit No. 2) by which such dwelling units (the "Affordable Units") will be restricted, to
set forth the method of selecting eligible tenants, tenant eligibility requirements, the
respective roles of the City and Owner and any other items determined necessary by
the City; and
88
-2-
WHEREAS, Owner hereby agrees to enter into certain additional restrictions
upon the ownership and operation of the Project, which will bind the Project and Owner,
its successors and assigns (the "Affordable Housing Implementation and Rental
Restriction Plan"). The purpose of this Affordable Housing Agreement and the
Affordable Housing Implementation and Rental Restriction Plan (the `Plan") is to create
such conditions, covenants, restrictions, liens, servitudes, and charges upon and
subject to which the Project and each and every part and portion thereof shall be
occupied, leased and rented. The provisions of this Affordable Housing Agreement,
including the Affordable Housing Implementation and Rental Restriction Plan, shall
apply to and bind any successors-in-interest of Owner. Each of the provisions thereof
are imposed upon the Project as mutual and reciprocal equitable servitudes in favor of
each and every other portion of the Project.
NOW, THEREFORE, in consideration of the mutual covenants and undertakings
set forth herein and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the City and the Owner hereby agree as follows:
ARTICLE 1. DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings unless the context in which they are used clearly requires otherwise.
"Affordable Housing Cost" shall mean rent plus a reasonable utility allowance
that does not exceed the following ("Affordable Rent"):
(A) For a Very Low Income household, the product of thirty percent (30%)
times fifty percent (50%) of the County Median Income adjusted for family
size appropriate for the Unit.
(B) For a Low Income household, the product of thirty percent (30%) times
sixty percent (60%) of the County Median Income adjusted for family size
appropriate for the Unit.
"Affordable Units" shall mean the 24 rent-restricted units described in this
Affordable Housing Agreement and as described in the Affordable Housing
Implementation and Rental Restriction Plan.
"Agreement" shall mean the Affordable Housing Agreement, which is this
instrument, running to the benefit of the City of Moorpark, restricting the Project
apartment units to Very Low and Low Income households as set forth herein at an
Affordable Housing Cost.
"City" shall mean the City of Moorpark.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housing and Community
89
-3-
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by
HCD.
"First Lender" shall mean the beneficiary of a First Mortgage, and its successors
and assigns.
"First Mortgage" shall mean the deed of trust and other security instruments
securing a First Mortgage Loan.
"First Mortgage Loan" shall mean a first priority deed of trust loan.
"Life of the Project" Shall mean the period of time the Site is used for the Project
in accordance with this Agreement and City approved Residential Planned
Development, but in no event less than 55 years.
"Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, adjusted for household size
appropriate to the Unit. The household income amount for Lower Income households
shall be based on the amount published by HCD as the Household Income Limits for
Ventura County ("HCD Income Limits") or such successor information in the event the
referenced published information is no longer available.
"Low Income Household" or "Lower Income Household" or "Low Income Tenant"
means individuals or households qualified on the basis of a "certification of tenant
eligibility" as certified by such individual or household, who have a gross income which
does not exceed Low Income, adjusted for household size.
"Owner" shall mean Area Housing Authority of the County of Ventura and any
permitted assignee of its rights, powers and responsibilities, or any successor in interest
to fee title to the Project or Property.
"Plan" shall mean the Affordable Housing Implementation and Rental Restriction
Plan which is attached to this Agreement as Exhibit No. 2 and incorporated herein by
this reference.
"Project" is the residential development consisting of 24 apartments located on
the Property, together with structures, improvements, equipment, fixtures, and other
personal property owned by the Owner and located on or used in connection with all
such improvements and all functionally related and subordinate facilities.
"Property" shall mean that real property in the City of Moorpark, California
described as set forth in the Legal Description attached to this Agreement as Exhibit No.
1.
"Term" shall mean the longest feasible time, but in no event less than the Life of
the Project , or fifty-five (55) years, commencing upon the recordation of this Agreement
(i.e., a perpetual term).
90
-4-
"Units" shall mean residential dwelling units.
"Utility Allowance" shall mean the utility allowance set forth in the chart attached
to the Plan as Exhibit D.
"Very Low Income" shall mean household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit. The household income amount for Very Low Income households shall be
based on the amount published by HCD as the Household Income Limits for Ventura
County ("HCD Income Limits") or such successor information in the event the
referenced published information is no longer available.
"Very Low Income Household" or "Very Low Income Tenant" means individuals
or households qualified on the basis of a `certification of tenant eligibility" as certified by
such individual or household, who have a gross income which does not exceed Very
Low Income, adjusted for household size.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 Unless otherwise specified, references to Articles, Sections, and
other Subdivisions of this Agreement are to the designated Articles, Sections, and other
Subdivisions of this Agreement as originally executed. The words "hereof," "herein,"
"hereunder," and words of similar import shall refer to this Agreement as a whole.
1.2.3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Agreement and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to `copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
ARTICLE 2. AFFORDABLE HOUSING IMPLEMENTATION AND RENTAL
RESTRICTION PLAN AND USE OF PROPERTY
2.1 Purpose of Restrictions. The City is required pursuant to the Project
Approvals and California Health and Safety Code Section 33413(b) to impose certain
income and affordability restrictions on a specified number of Units in the Project. The
provisions of the Affordable Housing Implementation and Rental Restriction Plan
("Plan") are intended to carry out those requirements, including the provision of nineteen
(19) units at Very Low Income, and five (5) units at Low Income.
2.2 Agreement to be Recorded. Owner represents, warrants, and covenants
that it will cause this Agreement, including the Plan which is attached hereto and
91
-5-
incorporated herein by this reference, to be recorded in the Office of the County
Recorder of Ventura County, California, and that this Agreement shall be senior in
priority to any lien, encumbrance or other matter of record except as approved by City.
The Owner shall pay all fees and charges in connection with any such recordation.
2.3 Use of the Property. Owner represents, warrants, and covenants to
operate the Project and Property as an affordable multifamily residential rental property
and uses incidental thereto and for no other purposes. Owner further agrees not to
convert the Project to any type of common interest development, for-sale
condominiums, community apartments, planned development, stock cooperative, hotel,
motel, or any type of congregate care or assisted living facility for the life of the Project.
Owner agrees to the extent permitted by applicable state and federal law, priority shall
be granted to eligible Moorpark residents exclusively for the first thirty (30) days of
project lease up
2.4 Rules. In addition to the conditions and restrictions to be contained in
leases or rental agreements as provided in this Agreement, ongoing operation of the
Project will be subject to reasonable house rules, policies and regulations issued from
time to time by Owner ("Rules"). Owner shall submit its Rules to City during the Initial
Rent-Up. From time to time thereafter, Owner shall submit any amendments,
modifications or changes to such Rules to the City at least thirty (30) days prior to their
effective date to permit the City to comment. In addition, Owner shall submit to the City
on an annual basis a certification that the Rules previously submitted to City, as
amended, remain in effect. (If applicable, any Extended Use Agreement entered into
between Owner and the California Tax Credit Allocation Committee shall be consistent
with this Agreement.) If Owner no longer utilizes the Property in accordance with the
DDA and with City of Moorpark PD 2015-01, then the Property shall be sold to the City
for $1.00.
ARTICLE 3. TERM. This Agreement shall remain in full force and effect for the Term,
unless earlier terminated in accordance with this Agreement.
ARTICLE 4. DEFAULT; REMEDIES
4.1 An Event of Default. Each of the following shall constitute an "Event of
Default" by the Owner hereunder:
4.1.1 Failure by the Owner to duly perform, comply with and observe
in any material respect the conditions of Project approval, conditions, terms, or
covenants of this Agreement, if such failure remains uncured thirty (30) days after
written notice of such failure from the City to the Owner in the manner provided herein
or, with respect to a default that cannot be cured within thirty (30) days, if the Owner
fails to commence such cure within such thirty (30) day period or thereafter fails to
diligently and continuously proceed with such cure to completion. In no event shall the
City be precluded from exercising remedies if an Event of Default is not cured within
ninety (90) days after the first notice of default is given, subject to Section 5.6. If a
92
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different period or notice requirement is specified under any other section of this
Agreement, then the specific provision shall control.
4.1.2 Any representation or warranty contained in this Agreement or
in any application, financial statement, certificate, or report submitted to the City by
Owner proves to have been incorrect in any material respect when made, if such failure
remains uncured thirty (30) days after written notice of such failure from City to Owner in
the manner provided herein or, with respect to a default that cannot be cured within
thirty (30) days, if the Owner fails to commence such cure within such thirty (30) day
period or thereafter fails to diligently and continuously proceed with such cure to
completion
4.1.3 A court having jurisdiction shall have made or rendered a
decree or order (a) adjudging Owner to be bankrupt or insolvent; (b) approving as
properly filed a petition seeking reorganization of Owner or seeking any arrangement on
behalf of the Owner under the bankruptcy law or any other applicable debtor's relief law
or statute of the United States or of any state or other jurisdiction; (c) appointing a
receiver, trustee, liquidator, or assignee of the Owner in bankruptcy or insolvency or for
any of its properties; or (d) directing the winding up or liquidation of the Owner,
providing, however, that any such decree or order described in any of the foregoing
subsections shall have continued unstayed or undischarged for a period of ninety (90)
days.
4.1.4 The Owner shall have assigned its assets for the benefit of its
creditors or suffered a sequestration or attachment or execution on any substantial part
of its property, unless the property so assigned, sequestered, attached, or executed
upon shall have been returned or released within ninety (90) days after such event
(unless a lesser time period is permitted for cure hereunder) or prior to sale pursuant to
such sequestration, attachment, or execution. If the Owner is diligently working to
obtain a return or release of the property and the City's interest hereunder is not
imminently threatened in the City's reasonable business judgment, then the City shall
not declare a default under this subsection.
4.1.5 The Owner shall have voluntarily suspended its business or
dissolved and a subsequent Owner has not assumed the Owner's obligations in
accordance with this Agreement.
4.1.6 Should there occur any default declared by any lender under
any loan document or deed of trust relating to any loan made in connection with the
Project or Property, which loan is secured by a deed of trust or other instrument of
record.
4.2 Liens.
4.2.1 This Agreement shall be senior in priority to any lien or
encumbrance on the Property and all liens and encumbrances shall be subordinate and
subject to this Agreement, regardless of actual date of recordation.
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4.2.2 Owner shall pay and promptly discharge when due, at Owner's
cost and expense, all liens, encumbrances and charges upon the Project or the
Property, or any part thereof or interest therein (except the lien of any mortgage, deed
of trust or other recorded instrument securing any construction or permanent financing
for the Project, which shall, in any event, be junior and subordinate to this Agreement),
provided that the existence of any mechanic's, laborer's, materialman's, supplier's, or
vendor's lien or right thereto shall not constitute a violation of this Section if payment is
not yet due under the contract which is the foundation thereof and if such contract does
not postpone payment for more than forty-five (45) days after the performance thereof.
Owner shall have the right to contest in good faith the validity of any such lien,
encumbrance or charge, provided that within ten days after service of a stop notice or
ninety days after recording of a mechanic's lien, Owner shall deposit with City a bond or
other security reasonably satisfactory to City in such amounts as City shall reasonably
require, but no more than the amount required to release the lien under California law
and provided further that Owner shall thereafter diligently proceed to cause such lien,
encumbrance or charge to be removed and discharged Owner shall thereafter diligently
proceed to cause such lien, encumbrance or charge to be removed and discharged,
and shall, in any event, cause such lien, encumbrance or charge to be removed or
discharged not later than sixty (60) days prior to any foreclosure sale. If Owner shall fail
either to remove and discharge any such lien, encumbrance or charge or to deposit
security in accordance with the preceding sentence, if applicable, then, in addition to
any other right or remedy of City, City may, but shall not be obligated to, discharge the
same, without inquiring into the validity of such lien, encumbrance or charge nor into the
existence of any defense or offset thereto, either by paying the amount claimed to be
due, or by procuring the discharge of such lien, encumbrance or charge by depositing in
a court a bond or the amount or otherwise giving security for such claim, in such
manner as is or may be prescribed by law. Owner shall, immediately upon demand
thereof by City, pay to City an amount equal to all costs and expenses incurred by City
in connection with the exercise by City of the foregoing right to discharge any such lien,
encumbrance or charge.
4.3 Costs of Enforcement. If any Event of Default occurs, and is continuing,
City may employ an attorney or attorneys to protect its rights hereunder. Subject to
California Civil Code Section 1717, the non-prevailing party promises to pay to the
prevailing party, on demand, the fees and expenses of such attorneys and all other
costs of enforcing the obligations secured hereby including without limitation, recording
fees, receiver's fees and expenses, and all other expenses of whatever kind or nature,
incurred by the prevailing party in connection with the enforcement of this Agreement,
whether or not such enforcement includes the filing of a lawsuit.
4.4 Enforcement of this Agreement. Upon the occurrence of any Event of
Default by Owner until such Event of Default is cured by Owner in accordance with
Section 4.1, City shall be entitled to enforce performance of any obligation of Owner
arising under this Agreement and to exercise all rights and powers under this
Agreement or any law now or hereafter in force. No remedy herein conferred upon or
reserved to City is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to every
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other remedy given hereunder or now or hereafter existing at law or in equity or by
statute. Every power or remedy given by this Agreement to the City may be exercised,
concurrently or independently, from time to time and as often as may be deemed
expedient by the City, and the City may pursue inconsistent remedies.
4.4.1 The City shall have the right to mandamus or other suit, action
or proceeding at law or in equity to require the Owner to perform its obligations and
covenants under this Agreement and the Plan or to enjoin acts or things which may be
unlawful or in violation of the provisions hereof.
4.5 Right of Contest. The Owner shall have the right to contest in good faith
any claim, demand, levy, or assessment the assertion of which would constitute an
Event of Default hereunder. Any such contest shall be prosecuted diligently and in a
manner unprejudicial to the City or the rights of the City hereunder.
ARTICLE 5. GENERAL PROVISIONS
5.1 Notice. All notices (other than telephone notices), certificates or other
communications (other than telephone communications) required or permitted
hereunder shall be sufficiently given and should be deemed given when personally
delivered or when sent by telegram, or when sent by facsimile transmission (if properly
confirmed in writing), or forty-eight (48) hours following mailing by registered or certified
mail, postage prepaid, or twenty-four hours following transmission of such notice by
express mail, Federal Express or similar carriers, addressed as follows:
If to City: City of Moorpark
Attn: City Manager
799 Moorpark Avenue
Moorpark, California 93021
Telephone No.: (805) 517-6212
Facsimile No.: (805) 532-2528
If to Developer: Area Housing Authority of the County of Ventura
Attn: Executive Director
1400 West Hillcrest Drive
Newbury Park, CA 91320
Phone No.: (805) 480-9991
Facsimile No.: (805) 480-9121
5.2 Relationship of Parties. Nothing contained in this Agreement shall be
interpreted or understood by any of the parties, or by any third persons, as creating the
relationship of employer and employee, principal and agent, limited or general
partnership, or joint venture between the City and the Owner or the Owner's agents,
employees or contractors, and the Owner shall at all times be deemed an independent
contractor and shall be wholly responsible for the manner in which it or its agents, or
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both, perform the services required of it by the terms of this Agreement for the operation
of the Project. The Owner has and hereby retains the right to exercise full control of
employment, direction, compensation and discharge of all persons assisting in the
performance of services hereunder. In regards to the on-site operation of the Project,
the Owner shall be solely responsible for all matters relating to payment of its
employees, including compliance with Social Security, withholding and all other laws
and regulations governing such matters. The Owner agrees to be solely responsible for
its own acts and those of its agents and employees.
5.3 No Claims. Nothing contained in this Agreement shall create or justify any
claim against the City by any person the Owner may have employed or with whom the
Owner may have contracted relative to the purchase of materials, supplies or
equipment, or the furnishing or the performance of any work or services with respect to
the operation of the Project or the Property.
5.4 Conflict of Interests. No member, official or employee of the City shall
make any decision relating to this Agreement which affects his or her personal interests
or the interests of any corporation, partnership or association in which he or she is
directly or indirectly interested.
5.5 Limitation of Liability.
5.5.1 No member, official, employee, agent or attorney of the City
shall be personally liable to the Owner, or any successor in interest, in the event of any
default or breach by the City or for any amount which may become due to the Owner or
successor or on any obligation under the terms of this Agreement. No member, official,
employee, attorney, partner or consultant of the Owner shall be personally liable to City,
or any successor in interest, in the event of any default or breach by Owner or for any
amount which may become due to City or its successor, or on any obligations under the
terms of this Agreement or Development Agreement.
5.5.2 Notwithstanding any other provision or obligation to the contrary
contained in this Agreement, (i) the liability of Owner under this Agreement to any
person or entity, including, but not limited to, City and its successors and assigns, is
limited to Owner's interest in the Project and the Property, and such persons and
entities shall look exclusively thereto, or to such other security as may from time to time
be given for the payment of obligations arising out of this Agreement or any other
agreement securing the obligations of Owner, under this Agreement, (ii) from and after
the date of this Agreement, no deficiency or other personal judgment, nor any order or
decree of specific performance (other than pertaining to this Agreement), shall be
rendered against Owner, the assets of Owner (other than the Owner's interest in the
Project, and this Agreement), in any action or proceeding arising out of this Agreement.
5.6 Force Majeure. Whenever Owner is required to perform an act under this
Agreement by a certain time, said time shall be deemed extended so as to take into
account events of force majeure. As used herein "force majeure" shall mean a delay in
Owner's performance hereunder due to acts of God, fire, earthquake, flood, extreme
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weather conditions, explosions, war, invasion, insurrection, riot, mob violence,
sabotage, acts of terrorism, vandalism, malicious mischief, inability to procure or
general shortage of labor, equipment, facilities, materials or supplies in the open
market, failure of transportation, strikes, lockouts, actions of labor unions, third party
litigation, condemnation, requisition, governmental restrictions including, without
limitation, inability or delay in obtaining government consents or permits, laws or orders
of governmental, civil, military or naval authorities, other than the City, or any other
cause, whether similar or dissimilar to the foregoing, not within Owner's control, other
than lack of or inability to procure monies to fulfill its commitments or obligations under
this Agreement.
5.7 Title of Parts and Sections. Any titles of the parts, sections or subsections
of this Agreement are inserted for convenience of reference only and shall be
disregarded in construing or interpreting any part of its provision.
5.8 Hold Harmless. Except as such claims may arise from negligence, fraud
or willful misconduct by the City or anyone for whose actions City is legally liable, if any
person or entity performing work for the Owner on the Project or the Property shall
assert any claim against the City on account of any damage alleged to have been
caused by reason of acts of negligence of the Owner, the Owner shall defend at its own
expense any suit based upon such claim; and if any judgment or claims against the City
shall be allowed, the Owner shall pay or satisfy such judgment or claim and pay all
costs and expenses in connection therewith. Nothing herein stated shall be interpreted
as a prohibition against the Owner seeking indemnification (either contractually or as a
matter of law) from any third person or entity.
In addition, the Owner shall defend and indemnify the City (with counsel
approved by the City) against any claims or litigation of any nature whatsoever brought
by third parties and directly or indirectly arising from the Owner's failure to perform its
obligations under this Agreement, and in the event of settlement, compromise or
judgment hold the City free and harmless therefrom, except to the extent such claims
may arise from negligence, fraud or willful misconduct by City or anyone for whose
actions City is legally liable.
5.9 Rights and Remedies Cumulative. Except as otherwise expressly stated
in this Agreement or the Plan, the rights and remedies of the parties are cumulative, and
the exercise or failure to exercise one or more of such rights or remedies by either party
shall not preclude the exercise by it, at the same time or different times, of any right or
remedy for the same default or any other default by the other party. No waiver of any
default or breach by the Owner hereunder shall be implied from any omission by the
City to take action on account of such default if such default persists or is repeated, and
no express waiver shall affect any default other than the default specified in the waiver,
and such wavier shall be operative only for the time and to the extent therein stated.
Waivers of any covenant, term, or condition contained herein shall not be construed as
a waiver of any subsequent breach of the same covenant, term or condition. The
consent or approval by the City to or of any act by the Owner requiring further consent
or approval shall not be deemed to waive or render unnecessary the consent or
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approval to or of any subsequent similar act. The exercise of any right, power, or
remedy shall in no event constitute a cure or a waiver of any default under this
Agreement or the Plan, nor shall it invalidate any act done pursuant to notice of default,
or prejudice the City in the exercise of any right, power, or remedy hereunder.
5.10 Action at Law. The City may take whatever action at law or in equity as
may be necessary or desirable to enforce performance and observance of any
obligation, agreement or covenant of the Owner under this Agreement or the Plan. No
delay or omission to exercise any right or power accruing upon any default shall impair
any such right or power or shall be construed to be a waiver of such right or power, but
any such right or power may be exercised from time to time and as often as City may
deem expedient. In order to entitle the City to exercise any remedy reserved to it in this
Agreement or the Plan, it shall not be necessary to give any notice, other than such
notice as may be herein expressly required or required by law to be given.
5.11 Severability. If any term, provision, covenant or condition of this
Agreement is held in a final disposition by a court of competent jurisdiction to be invalid,
void or unenforceable, the remaining provisions shall continue in full force and effect
unless the rights and obligations of the parties have been materially altered or abridged
by such invalidation, voiding or unenforceability.
5.12 Legal Actions. In the event any legal action is commenced to interpret or
to enforce the terms of this Agreement or to collect damages as a result of any breach
thereof, the party prevailing in any such action shall be entitled to recover against the
party not prevailing all reasonable attorneys' fees and costs incurred in such action
(including, without limitation, all reasonable legal fees incurred in any appeal or in any
action to enforce any resulting judgment).
5.13 Binding Upon Successors. This Agreement, and the exhibits attached
hereto, shall run with the land and be binding upon and inure to the benefit of the heirs,
administrators, executors and assigns of each of the parties, and successors in interest
of fee title to the Project and the Property. Any reference in this Agreement to an
Owner shall be deemed to apply to any successor, heir, administrator, executor or
assign of such party who has acquired a fee interest in the Project or Property.
5.14 Effect and Duration. Owner covenants and agrees for itself, its heirs, its
administrators, its executors, its successors, its assigns and every successor in interest
to fee title of the Project, the Property or any part thereof, that the Owner and such
heirs, administrators, executors, successors, assigns and successors in interest shall
comply with all of the terms, provisions, easements, conditions, covenants, restrictions,
liens, and servitudes set forth in this Agreement.
5.15 Transfer. Owner shall provide the City with prior written notice of any sale
or transfer of the Project or the Property. Subject to this Section 5.15, upon the sale or
transfer of all of the Owner's interest in the Project and the Property, that Owner shall
be released from its obligations under this Agreement arising on or before the effective
date of the sale or transfer, provided that the Owner prior to the sale or transfer delivers
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to City a written assignment and assumption agreement substantially in the form of
Exhibit No. 3 attached hereto (the "Assignment and 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 Owner under this
Agreement and the Plan. Failure to provide a written Assignment and 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 the City discretion to approve or deny any such sale or transfer;
provided, that no Owner shall be released from its obligations under this Agreement
until the duly executed Assignment and Assumption Agreement has been delivered to
and executed by the City. Notwithstanding anything in this Section 5.15 to the contrary,
no Owner shall be released from its obligations under this Agreement if, at the time of
the sale or transfer of the Project or the Property, there is an uncured Event of Default
as set forth in Section 4.1 hereof.
Such Assignment and Assumption Agreement shall incorporate any relevant
provisions of Article 2 of the Affordable Housing Implementation and Rental Restriction
Plan, as necessary, in City's sole and absolute discretion.
Owner Acknowledges the City's authority to assign, at its sole discretion, its
obligations under this Agreement.
5.16 Time of the Essence. In all matters under this Agreement, time is of the
essence.
5.17 City Approval. Any approvals required under this Agreement shall not be
unreasonably withheld or delayed.
5.18 Complete Understanding of the Parties. The DDA, the Project Approvals,
this Agreement and the other attached Exhibits hereto constitute the entire
understanding and agreement of the parties with respect to the matters described
herein.
5.19 Construction and Interpretation of Agreement. The parties hereto
acknowledge and agree that this Agreement has been prepared jointly by the parties
and has been the subject of arm's length and careful negotiation over a considerable
period of time, that each party has reviewed this Agreement with legal counsel, and that
each party has the requisite experience and sophistication to understand, interpret and
agree to the particular language of the provisions of this Agreement. Accordingly, in the
event of an ambiguity in or dispute regarding the interpretation of this Agreement,
notwithstanding Civil Code Section 1654, this Agreement shall not be interpreted or
construed against the party preparing it, and instead other rules of interpretation and
construction shall be utilized.
5.20 Controlling Law; Venue. This Agreement shall be deemed to be entered
into in California and shall be controlled and interpreted by the internal laws of
California, without regard to conflict of law provisions, except to the extent federal law
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applies. Venue for any action brought under this Agreement will be in the Superior Court
for the County of Ventura, California or in the United States District Court for the Central
District of California. Owner hereby accepts for itself and in respect to its property,
generally and unconditionally, the non-exclusive jurisdiction of the foregoing courts.
Owner irrevocably consents to the service of process in any action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to Owner at its
address for notices pursuant to this Agreement. Nothing contained herein shall affect
the right of the City to serve process in any other manner permitted by law.
5.21 Hazardous Materials.
5.21.1 Definitions. The following special definitions shall apply for the
purposes of this Section:
(a) "Hazardous Materials" shall mean any substance, material, or
waste which is regulated by any local governmental authority, the State of California, or
the United States Government, including, but not limited to, any material or substance
which is (i) defined as a "hazardous waste," "extremely hazardous waste," or "restricted
hazardous waste" under Section 25115, 25117 or 25122.7, or listed pursuant to Section
25140 of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous
Waste Control Law)), (ii) defined as a "hazardous substance" under Section 25316 of
the California Health and Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-
Tanner Hazardous Substance Account Act), (iii) defined as a "hazardous material,"
"hazardous substance," or "hazardous waste" under Section 25501 of the California
Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release
Response Plans and Inventory), (iv) defined as a "hazardous substance" under Section
25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground
Storage of Hazardous Substances), (v) petroleum, (vi) friable asbestos, (vii)
polychlorinated byphenyls, (viii) listed under Article 9 or defined as "hazardous" or
"extremely hazardous" pursuant to Article 11 of Title 22 of the California Administrative
Code, Division 4, Chapter 20, (ix) designated as "hazardous substances" pursuant to
Section 311 of the Clean Water Act (33 U.S.C. § 1317), (x) defined as a "hazardous
waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. §6901 et seq. (42 U.S.C. §6903) or (xi) defined as "hazardous substances"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation, and Liability Act, 42 U.S.C. §9601 et seq.
(b) "Environmental Laws" means any federal, state or local law,
statute, ordinance, or regulation pertaining to environmental regulation, contamination
or cleanup of any Hazardous Materials, including, without limitation, (i) Sections 25115,
25117, 25122.7 or 25140 of the California Health and Safety Code, Division 20, Chapter
6.5 (Hazardous Waste Control Law)), (ii) Section 25316 of the California Health and
Safety Code, Division 20, Chapter 6.8 (Carpenter-Presley-Tanner Hazardous
Substance Account Act), (iii) Section 25501 of the California Health and Safety Code,
Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory), (iv) Section 25281 of the California Health and Safety Code, Division 20,
Chapter 6.7 (Underground Storage of Hazardous Substances), (v) Article 9 or Article
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11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (vi) Section
311 of the Clean Water Act (33 U.S.C. §1317), (vii) Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. §6901) (42 U.S.C. §6903), (viii) Section 101
of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. §9601 et seq.
5.21.2 Certain Covenants and Agreements. The Owner hereby agrees
that:
(a) The Owner shall not knowingly permit the Project, the Property
or any portion thereof to be a site for the use, generation, treatment, manufacture,
storage, disposal or transportation of Hazardous Materials or otherwise knowingly
permit the presence of Hazardous Materials in, on or under the Project or the Property.
For the purposes of this Section only, the term "Hazardous Materials" shall not include
(1) construction materials, gardening materials, household products, office supply
products, or janitorial supply products customarily used in the construction,
maintenance, or management of residential developments or associated buildings and
grounds, or typically used in residential activities, in a manner typical of other residential
developments which are comparable to the Project; or (2) certain substances which
may contain chemicals listed by the State of California pursuant to Health and Safety
Code Section 25249.8 et seq., which substances are commonly used by a significant
portion of the population living within the region of the Project, including (without
limitation) alcoholic beverages, aspirin, tobacco products, and saccharine.
(b) The Owner shall keep and maintain the Project and the Property
and each portion thereof in compliance with, and shall not cause or permit the Project,
the Property or any portion thereof to be in violation of, any Environmental Laws.
(c) Upon receiving actual knowledge of the same the Owner shall
immediately advise the City in writing of: (1) any and all enforcement, cleanup, removal
or other governmental or regulatory actions instituted, completed or threatened against
the Owner or the Project or the Property pursuant to any applicable Environmental
Laws; (2) any and all claims made or threatened by any third party against the Owner or
the Project or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials (the matters set
forth in the foregoing clause (1) and this clause (2) are hereinafter referred to as
"Hazardous Materials Claims"); (3) the presence of any Hazardous Materials in, on or
under the Project or the Property; or (4) the Owner's discovery of any occurrence or
condition on any real property adjoining or in the vicinity of the Project classified as
"borderzone property" under the provisions of California Health and Safety Code,
Section 25220 et seq., or any regulation adopted in accordance therewith, or to be
otherwise subject to any restrictions on the ownership, occupancy, transferability or use
of the Project or the Property under any Environmental Laws.
5.21.3 Indemnity. Owner hereby agrees to indemnify, protect, hold
harmless and defend (by counsel reasonably approved by the City) the City, and its City
Board members, officers, employees, contractors, agents and attorneys from and
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against any and all claims, losses, damages, liabilities, fines, penalties, charges,
administrative and judicial proceedings and orders, judgments, remedial action
requirements, enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, but not limited to, reasonable attorneys' fees and
expenses(collectively, a "Loss"), arising directly or indirectly, in whole or in part, out of
(1) the failure of the Owner or any other person or entity occupying or present on the
Project or Property to comply with any Hazardous Materials Law relating in any way
whatsoever to the handling, treatment, presence, removal, storage, decontamination,
cleanup, transportation or disposal of Hazardous Materials into, on, under or from the
Project or the Property; (2) the presence in, on or under the Project or the Property of
any Hazardous Materials or any releases or discharges of any Hazardous Materials
into, on, under or from the Project or the Property; or (3) any activity carried on or
undertaken on the Project or the Property during Owner's ownership of the Property,
whether by the Owner or any employees, agents, contractors or subcontractors of the
Owner, or any third persons at any time occupying or present on the Project or the
Property, in connection with the handling, treatment, 'removal, storage,
decontamination, cleanup, transport or disposal of any Hazardous Materials at any time
located or present on or under the Project or the Property. The foregoing indemnity
shall further apply to any residual contamination on or under the Project or the Property,
or affecting any natural resources, and to any contamination of any property or natural
resources arising in connection with the generation, use, handling, treatment, storage,
transport or disposal of any such Hazardous Materials on, under, or from the Project or
the Property, and irrespective of whether any of such activities were or will be
undertaken in accordance with Environmental Laws. However, the foregoing indemnity
shall not extend to the portion of any Loss arising from the gross negligence, fraud or
willful misconduct of the City or anyone for whose actions the City is legally liable. This
Section shall survive termination of this Agreement.
5.21.4 No Limitation. The Owner hereby acknowledges and agrees
that the Owner's duties, obligations and liabilities under this Agreement, including
without limitation, under Section 5.21 above, are in no way limited or otherwise affected
by any information the City may have concerning the Project or the Property and/or the
presence within the Project or the Property of any Hazardous Materials, whether the
City obtained such information from the Owner or from its own investigations.
5.22 Insurance Requirements.
5.22.1 Required Coverage. The Owner shall maintain and keep in
force, at the Owner's sole cost and expense, the following insurance applicable to the
Project and the Property, provided, however, that a Contractor's liability policy may be
used in lieu of Owner's policy during construction provided it complies with all terms and
conditions of this Section 5.22:
(a) Comprehensive general liability insurance with limits not less
than two million dollars ($2,000,000) for each occurrence, combined single limit for
bodily injury and property damage, including coverages for contractual liability, personal
injury, broad form property damage, products and completed operations. The policy
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limits shall be adjusted by the aggregate percentage change in the Consumer Price
Index from the date of recordation of this Agreement, calculated every five (5) years,
beginning on the fifth anniversary date of the recordation of this Agreement.
(b) Worker's compensation insurance, fidelity bonds and/or such
other insurance coverage which is ordinarily and customarily maintained on like kind
and sized apartment projects within the City.
(c) A policy or policies of insurance against loss or damage to the
Project resulting from fire, windstorm, hail, lightning, vandalism, malicious mischief, and
such other perils ordinarily included in extended coverage casualty insurance policies.
In addition, if Owner carries coverage voluntarily for additional causes (such as
earthquake, riot, civil commotion or other), such coverage shall be treated in allrespects
as the policy or policies required to be kept for so long as Owner continues to voluntarily
carry such coverage. All insurance hereunder, except earthquake insurance, shall be
maintained in an amount not less than one hundred percent (100%) of the Full Insurable
Value of the Project as defined below (such value to include amounts spent for
construction of the Project, architectural and engineering fees, and inspection and
supervision). "Full Insurable Value of the Project" shall mean the actual replacement
cost excluding the cost of excavation, foundation and footingsbelow the ground level of
the Project. To ascertain the amount of coverage required, Owner shall cause the Full
Insurable Value to be determined from time to time, but in no event less often than once
each five (5) years, by appraisal by the insurer or by any appraiser mutually acceptable
to City and Owner; except that no such appraisals shall be required if the policy is
written on a "replacement cost" basis. In the event of a loss or damage to the Project,
Owner is obligated to rebuild or repair the Project.
5.22.2 General Requirements. The insurance required by this Section
shall be provided under an occurrence form, and the Owner shall maintain such
coverage continuously so long as this Agreement is in force. Should any of the required
insurance be provided under a form of coverage that includes an annual aggregate limit
or provides that claims investigation or legal defense costs be included in such annual
aggregate limit, such annual aggregate limit shall be one and one-half times the
occurrence limits specified above. All policies shall be with an insurance carrier
licensed and admitted to do business in California and rated in Best's Insurance Guide,
or any successor thereto (or if there be none, an organization having a national
reputation) as having a "Best's Rating" of "A" and a "Financial Size Category" of at least
"VII" or if such ratings are not then in effect, the equivalent thereof.
5.22.3 Additional Insured. The City shall be named as an additional
insured on the general liability insurance covering the Project and the Property with an
endorsement form as approved by the City Clerk. Comprehensive general liability
policies shall also be endorsed to name as additional insureds the City, and its City
Board members, officers, agents and employees. All policies shall be endorsed to
provide thirty (30) days prior written notice of cancellation, reduction in coverage, or
intent not to renew to the address established for notices to the City pursuant to Section
5.1 of this Agreement.
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5.22.4 Certificates of Insurance. Upon the City's request at any time
during the Term of this Agreement, the Owner shall provide certificates of insurance, in
form and with insurers reasonably acceptable to the City, evidencing compliance with
the requirements of this Section, and shall provide complete copies of such insurance
policies, including a separate endorsement approved by the City Clerk, as indicated in
Section 5.22.3, naming the City as an additional insured.
5.23 Burden and Benefit. City and the Owner hereby declare their
understanding and intent of the burden of the covenants set forth herein touching and
concerning the Project and the Property, in that Owner's legal interest in the Project and
the Property is rendered less valuable thereby. City and Owner hereby declare their
understanding and intent that the covenants, reservations, and restrictions set forth
herein directly benefit the land (a) by enhancing and increasing the enjoyment and use
of the Project and the Property by Very Low and Low Income Households, (b) by
providing certainty to the Owner regarding the development of the Property pursuant to
the Project Approvals, and (c) by furthering the public purposes advanced by the
Redevelopment Plan for the City of Moorpark Redevelopment Project Area.
5.24 Amendments. Changes and modifications to this Agreement shall be
made only upon the written mutual consent of the Parties. However, no changes shall
be made to this Agreement which would adversely affect any bonds issued under this
Project without the written consent of all appropriate parties with respect to any bond
issuance.
5.25 No Third Party Beneficiaries. This Agreement shall not benefit or be
enforceable by any person, or firm, or corporation, public or private, except the City and
the Owner and their respective successors and assigns. The Redevelopment City of the
City of Moorpark, acting pursuant to State law, shall have the right, power and authority
to enforce this Agreement in its own name and in the name of the City, and shall be the
beneficiary of all rights of the City in this Agreement.
5.26 Counterparts. This Agreement may be executed in counterparts, which
together will be one agreement.
5.27 Certain Fees. Owner shall pay the following fees to the City:
(a) Owner shall pay an annual fee to City of Two Thousand Dollars
($2,000.00) to administer the affordability provisions and other requirements of the
Affordable Housing Agreement (the "Affordable Housing Administration Fee") This fee
shall be paid on or before February 1 of each year commencing after the first residential
occupancy for the Project and adjusted annually commencing July 1, 2016, by the
larger increase of (a) or (b) below:
(1) The CPI increase shall be determined by using the
information provided by the U. S. Department of Labor Statistics, for all urban
consumers within the Los Angeles/Riverside/Orange County metropolitan area
104
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during the prior year. The calculation shall be made using the month of October
over the prior October.
(2) The annual percentage amount paid to City by the Local City
Investment Fund (LAIF) calculated as follows: The sum of the quarterly effective
yield amounts paid by LAIF for the City's Pooled Money Investment Account for
the most recent four (4) calendar quarters divided by four (4); and
In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result.
(b) Administration by City; Administrative Fee. City shall appoint a
staff person to oversee the implementation of this Agreement, and shall notify
Affordable Housing Owner in writing of the name and phone number of such staff
person and any replacements. On or before the first day of February of each calendar
year, commencing after the first residential occupancy of the Project, Owner shall pay to
the City for the administration of this Agreement an annual fee equal to fifteen thousand
dollars ($15,000.00), subject to adjustment annually, by the larger increase of (1) or (2)
below:
(1) The percentage increase in the Consumer Price Index
during the prior year, which shall be determined by using the Consumer Price
Index by the U. S. Department of Labor, Bureau of Labor Statistics, for all urban
consumers, all items, for the Los Angeles/Riverside/Orange County metropolitan
area. The calculation shall be made by copying such CPI for the month of
October to the CPI for the previous October.
(2) The annual percentage amount paid to City by the Local
Agency Investment Fund (LAIF), calculated as follows: The sum of the quarterly
effective yield amounts paid by LAIF for the City's Pooled Money Investment
Account for the most recent four (4) calendar quarters divided by four (4).
In the event the CPI or LAIF is discontinued or revised, such
successor index with which they are replaced shall be used to achieve substantially the
same result, or it there is no successor index, then another index shall be used to
achieve substantially the same result.
5.28 City Naming Rights. City shall have the right to specify a name for the
Project, and Owner shall at all times use such name for the Project. City shall inform
Owner of City's name selection in writing on or before the Certificate of Completion.
5.29 CalTrans Easement. If City obtains an easement from the State of
California/CalTrans over a portion of Highway 23 and/or Moorpark Avenue, then City
shall so rectify Owner and shall provide a copy of the easement to Owner, and Owner
shall thereafter, at Owner's cost and expense, promptly landscape the easement area
and maintain such landscaping in good condition. If Owner fails to do so, City may do
105
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so, and Owner shall thereafter reimburse City for its costs within ten (10) days after
written demand.
5.30 Votes Regarding Assessment Districts. Owner agrees to cast affirmative
ballots for the increase of any assessment for existing assessment districts for the
maintenance of parking and median landscaping, street lighting and parks conferring
special benefits, and for the formation of any new assessment district for such
purposes, in order to supplement then-existing assessments upon properties within the
Project. Owner hereby waives any right it may have to contest or protest such
assessments or any assessment increases. In the event that any such assessment
district has insufficient funds for its purposes, then Owner shall pay the annual
assessment that the assessment district requires to the assessment district within five
(5) business days after written demand from the assessment district from time to time.
5.31 Wall and Fence Plan. Owner shall submit a wall and fence plan for the
Project to the Community Development Director for approval.
5.32 City Development Fees. The Los Angeles Area of Contribution, Citywide
Traffic Mitigation, Arts in Public Places, Library Facilities, Police Facilities, and Fire
Facilities shall be paid pursuant to the established fee schedules. The Art in Public
Places requirement may be satisfied by providing on-site art work consistent with the
provisions of Chapter 17.50 of the Moorpark Municipal Code. The Owner shall also pay
to the City the following fees:
Development Fee $ 9,021.00 per unit
Community Service Fee $ 2,600.00 per unit
Citywide Traffic Mitigation Fee $ 6,402.00 per unit
Park Fee $ 6,740.00 per unit
Air Quality Fee $ 1,041.00 per unit
5.33 Conflicts Between this Agreement and Disposition and Development
Agreement. In the event of a conflict between any of the terms of the Disposition and
Development Agreement and this Agreement, the applicable terms of this Agreement
shall govern and prevail.
106
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WHEREFORE, the parties have executed this Agreement as of the date
first-above written.
CITY OF MOORPARK
By:
Print Name:
Title:
Area Housing Authority of the County of
Ventura
By:
Print Name:
Title:
107
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CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, , Notary Public
personally appeared
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
11!01 1 ,-(l ,et-•r
Signer's Name:
O Individual Top of thumb here
•
❑ Corporate Officer—Title(s):
O Partner— 0 Limited 0 General
❑ Attorney in Fact
❑ Trustee
❑ Guardian or Conservator
O Other:
Signer is Representing:
-22- 10 8
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
A notary public or other officer
completing this certificate verifies only
the identity of the individual who signed
the document to which this certificate is
attached, and not the truthfulness,
accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF LOS ANGELES
On before me, , Notary Public
personally appeared
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity, and
that by his/her/their signature(s) on the instrument the
person(s), or the entity(ies) upon behalf of which the
person(s)acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of
the State of California that the foregoing paragraph is true
and correct.
WITNESS my hand and official seal.
Place Notary Seal Above Signature of Notary Public
OPTIONAL
Though the information below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document:
Document Date: Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) claimed by Signer(s)
Signer's Name:
m�ei-ct, .1i$
❑ Individual Top of thumb here
❑ Corporate Officer—Title(s):
❑ Partner— 0 Limited 0 General
❑ Attorney in Fact
O Trustee
❑ Guardian or Conservator
O Other:
Signer is Representing:
-23- 109
EXHIBIT NO. 1
TO AFFORDABLE HOUSING AGREEMENT
LEGAL DESCRIPTION
THE LAND REFERRED TO IS SITUATED IN THE STATED OF CALIFORNIA,
COUNTY OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
-91- 110
12853-0001\1841523v1.doc
EXHIBIT NO. 2
TO
AFFORDABLE HOUSING AGREEMENT
AFFORDABLE HOUSING IMPLEMENTATION
AND RENTAL RESTRICTION PLAN
(BEHIND THIS PAGE)
-92-
111
12853-0001\1841523v1.doc
CITY OF MOORPARK
AFFORDABLE HOUSING
IMPLEMENTATION
AND RENTAL RESTRICTION PLAN
-94- 112
12853-0001\1841523v1.doc
TABLE OF CONTENTS
Page
INTRODUCTION 4
ARTICLE 1 DEFINITIONS AND INTERPRETATION 4
1.1 Definitions 4
1.2 Rules of Construction. 6
ARTICLE 2 RENTAL RESTRICTIONS 7
2.1 Purpose of Restrictions 7
2.2 Units Generally 7
2.3 Rent-Up Periods and Occupancy Procedures 8
2.4 Affordable Rent. 9
2.5 Alternative Affordable Rent Calculations 9
2.6 Income Recertification; Rent Increases. 9
2.7 Increased Income of Occupying Households. 10
2.8 Specific Enforcement of Affordability Restrictions. 10
2.9 City's Option to Place Tenants. 11
2.10 Priority for Moorpark Residents 12
2.11 Reporting Requirements 12
ARTICLE 3 OPERATIONS 12
3.1 Management Agent. 12
3.2 Day-to-Day Management Responsibility 13
3.3 Staffing Arrangements 13
ARTICLE 4 MAINTENANCE 13
4.1 Maintenance, Repair, Alterations 13
4.2 Disclaimer 14
4.3 Mechanics Liens 15
Page 1 of 17
113
ARTICLE 5 GENERAL PROVISIONS 15
5.1 General Use Restrictions 15
5.2 Residential Rental Property 15
5.3 Lease Provisions 15
5.4 Security Deposits 16
5.5 Additional Information; Books and Records 16
5.6 Title of Parts and Sections 16
5.7 Enforcement of Plan 16
5.8 Binding on Successors and Assigns 16
Page 2 of 17
114
Attachments
Attachments 1 Legal Description
Attachments 2 Certification of Tenant Eligibility
Attachments 3 Compliance Forms
Attachments 4 Type of Unit, Number of Units, Household
Size Adjustment and Utility Allowance
Page 3 of 17
115
AFFORDABLE HOUSING IMPLEMENTATION
AND RENTAL RESTRICTION PLAN
(EVERETT STREET APARTMENTS)
Moorpark, California 93021
INTRODUCTION
THE CITY OF MOORPARK, hereinafter called "City," acting to carry out its public
purposes to assist Very Low, and Low Income persons and families to obtain housing at
affordable housing cost, entered into a Disposition and Development Agreement dated
, 2015, recorded as Instrument No. in the
Official Records of the County of Ventura on (the "DDA") with the
Area Housing Authority of the County of Ventura (hereinafter referred to as "Owner"), for
the construction of a residential development consisting of 24 apartments located in the
City of Moorpark (the "Project"), on that certain real property described on the attached
Attachment 1 and incorporated herein by this reference (the `Property"). The purpose
of this Plan is to set forth such conditions, restrictions and requirements upon which the
Project and each and every part and portion thereof shall be occupied, leased and
rented. The provisions of this Affordable Housing Implementation and Rental Restriction
Plan (the "Plan") are intended to apply to the Project for the Term of the Plan and the
provisions of this Plan shall be incorporated and be a part of an Affordable Housing
Agreement between Owner and City.
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized terms used herein shall have the following
meanings unless the context in which they are used clearly requires otherwise.
"Affordable Housing Agreement" (the "Agreement") shall mean that certain
Affordable Housing Agreement to be entered into between Owner and the City.
"Affordable Rent" shall mean rent plus a reasonable utility allowance that does
not exceed the following:
(A) For a Very Low Income household, the product of thirty percent (30%)
times fifty percent (50%) of the County Median Income adjusted for family
size appropriate for the Unit.
(B) For a Low Income household, the product of thirty percent (30%) times
sixty percent (60%) of the County Median Income adjusted for family size
appropriate for the Unit.
"Affordable Units" shall mean the twenty-four (24) rent-restricted units for Very
Low and Low Income households, as provided herein.
"Consumer Price Index" shall mean the Consumer Price Index--All Urban
Consumers for Los Angeles/Orange/Riverside metropolitan area, as published from
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12853-0001\1841523v1 doc
time to time by the United States Department of Labor or, in the event such index is no
longer published or otherwise available, such replacement index as may be agreed
upon by Owner and City. All calculations relating to the Consumer Price Index shall be
made using the month of October.
"County" shall mean Ventura County.
"County Median Income" shall mean the Median Income adjusted by actual
household size as published annually by the Department of Housing and Community
Development (HCD) of the State of California for the County, which Median Income
levels shall be adjusted concurrently with publication of adjustment of the same by
HCD.
"Disposition and Development Agreement" shall mean that certain DDA dated,
2015, recorded as Instrument No. in the Official Records of the
County of Ventura on , which was adopted by the City Board on
"HCD" shall mean the Department of Housing and Community Development
(HCD) of the State of California.
"Initial Rent-Up" shall mean the period between the issuance of a certificate of
occupancy for the first residential unit and "Stabilization" (as defined below).
"Low Income" or "Lower Income" shall mean a household income that does not
exceed eighty percent (80%) of the County Median Income, based on household size
appropriate for the unit. The household income amount for Lower Income households
shall be based on the amount published by HCD as the Household Income Limits for
Ventura County ("HCD Income Limits") or such successor information in the event the
referenced published information is no longer available."
"Low Income Household" or "Lower Income Household" or "Low Income Tenant"
or "Lower Income Tenant" shall mean individuals or households whose gross income
does not exceed Low Income, adjusted for household size.
"Owner" shall mean Area Housing Authority of the County of Ventura, and any
permitted assignee of its rights, powers and responsibilities, or any successor in interest
to fee title to the Project or Property.
"Plan" shall mean this Affordable Housing Implementation and Rental Restriction
Plan.
"Project" is the residential development consisting of 24 apartments located on
the Property, together with structures, improvements, equipment, fixtures, and other
personal property owned by the Owner and located on or used in connection with all
such improvements and all functionally related and subordinate facilities.
Page 5of17
117
"Property" shall mean that real property in the City of Moorpark, California
described as set forth in the Legal Description attached to this Plan as Attachment 1.
"Stabilization" shall mean the time at which the Project achieves ninety percent
(90%) occupancy for ninety (90) consecutive days.
"Term" shall mean the longest feasible time, which includes, but is not limited to,
the life of the Project, but in no event less than fifty-five (55) years, commencing upon
the date of recordation of the Affordable Housing Agreement.
"Unit Allocation" shall mean the allocation of the Affordable Units as set forth in
greater detail in Section 2.2.1 and "Attachment 4.
"Units" shall mean the residential apartment units in the Project.
"Utility Allowance" shall mean the utility allowance set forth in the chart attached
to this Plan as Attachement 4.
"Very Low Income" shall mean a household income that does not exceed fifty
percent (50%) of the County Median Income, adjusted for household size appropriate to
the Unit. The household income amount for Very Low Income households shall be
based on the amount published by HCD as the Household Income Limits for Ventura
County ("HCD Income Limits") or such successor information in the event the
referenced published information is no longer available.
"Very Low Income Tenant" or "Very Low Income Household" shall mean
individuals or households qualified on the basis of a "certification of tenant eligibility" as
certified by such individual or household, who have a gross income which does not
exceed Very Low Income, adjusted for household size.
1.2 Rules of Construction.
1.2.1 The singular form of any word used herein, including the terms
defined herein shall include the plural and vice versa. The use herein of a word of any
gender shall include correlative words of all genders.
1.2.2 Unless otherwise specified, references to Articles, Sections, and
other Subdivisions of this Plan are to the designated Articles, Sections, and other
Subdivisions of this Plan as originally executed. The words "hereof," "herein,"
"hereunder," and words of similar import shall refer to this Plan as a whole.
1.2.3 All of the terms and provisions hereof shall be construed to
effectuate the purposes set forth in this Plan and to sustain the validity hereof.
1.2.4 Headings or titles of the several articles and sections hereof and
the table of contents appended to copies hereof shall be solely for convenience of
reference and shall not affect the meaning, construction, or effect of the provisions
hereof.
Page 6 of 17
118
ARTICLE 2 RENTAL RESTRICTIONS
2.1 Purpose of Restrictions. The City is required pursuant to the Project
Approvals and California Health and Safety Code Section 33413(b) to impose certain
income and affordability restrictions on a specified number of Units in the Project. The
provisions of this Plan are intended to carry out those requirements. Specifically, this
Plan provides for the availability of twenty-four (24) affordable units, all at affordable rent
and occupancy as follows: nineteen (19) that are affordable to Very Low Income
households; and five (5) that are affordable to Low Income households. One of the units
will be occupied by an on-site management employee of the owner as required by Tax
Credit regulations. The owner hereby agrees to covenant that the employee placed as
on-site manager would qualify as a low-income individual or household as defined in
this Agreement.
2.2 Affordable Units Generally.
2.2.1 Allocation of Affordable Units. During the Term of the Agreement,
twenty-four (24) Units. At least seven (7) three-bedroom units and twelve (12) two-
bedroom units, are to be occupied by Very Low Income households at an Affordable
Rent, as provided herein. The remainder of the Units (four (4) two bedroom units and
one three bedroom unit) shall be occupied by or held available for Low Income
households at an Affordable Rent. The "Unit Allocation" is also described on
Attachment "4".
2.2.2 Preference Policies. No preference or priority of rental of the
Affordable Units shall be given to otherwise eligible Very Low, or Low Income
employees of Owner, or the management company (except one on-site management
employee as discussed in Section 2.2.1), or any other Affiliates thereof, including, but
not limited to agents, contractors, subcontractors, or subsidiaries, with the exception of
the first thirty (30) days of the initial rental period where Moorpark residents are giving
priority status. To the extent permitted by applicable state and federal law, priority shall
be granted to eligible Moorpark residents for the Term of the Agreement. A waiting list
for the Affordable Units shall be maintained from which vacancies shall be filled. The
waiting list shall be established through a fair process for the selection of the next
eligible households to fill the vacancies allowing for priority for Moorpark residents.
Details of this process shall be submitted in writing to the City for review and approval
prior to the issuance of the first building permit for this project.
2.2.3 Occupancy Reporting. As specified in Section 2.11, Owner will
advise City on a quarterly or other periodic basis in writing of the number of Affordable
Units occupied by Very Low and Low Income Tenants by delivery of a certificate in the
form specified by the City, which is attached hereto as Attachment "3". Any reporting
schedule less frequent than quarterly must be approved by the City Manager.
2.2.4 Unit Classification. An Affordable Unit occupied by a Very Low
Income Tenant, or a Low Income Tenant shall be deemed, upon termination of
occupancy by such tenant (whether voluntarily or involuntarily), to be continuously
occupied by a Very Low Income Tenant, or a Low Income Tenant, as applicable, until
Page 7 of 17
119
re-occupied other than for a temporary period, at which time the classification of the Unit
shall be re-determined. Owner shall use commercially reasonable efforts to prevent
such temporary periods from exceeding sixty (60) days. Owner will also obtain and
maintain on file such Certifications of Tenant Eligibility in form similar to Attachment "2"
attached hereto and incorporated herein by reference, for each Very Low, Low and
Moderate Income Tenant as the City may, from time to time, require. Owner may
substitute a form different than the attached form upon City approval. Owner shall make
a good faith effort to verify that the income provided by an applicant in an income
certification is accurate by reviewing any one or more of the following documents which
shall be provided by the applicant:
(a) A pay stub for the most recent pay period;
(b) An income tax return for the most recent tax year;
(c) An income verification form from the applicant's current
employer;
(d) An income verification form from the Social Security
Administration and/or the California Department of Social
Services if the applicant receives assistance from either of
those agencies; or
(e) If the applicant is unemployed and has no tax return, another
form of independent verification.
2.2.5 Lease Provisions. The Owner shall include provisions in leases or
rental agreements for all Affordable Units which authorize the Owner to immediately
terminate the tenancy of any tenant occupying an Affordable Unit where one or more of
such tenants have misrepresented any fact material to the qualification of such an
individual or household as a Very Low or Low Income Tenant and/or for qualification for
occupancy of an Affordable Unit. Each lease or rental agreement for an Affordable Unit
shall also provide that the tenants of such Affordable Unit shall be subject to annual
certification or recertification of income, as required by the City, and shall be subject to
rental increases in accordance with Sections 2.6 of this Plan.
2.2.6 Management Diligence. Owner shall use commercially reasonable
efforts not to allow any rent-ready Affordable Unit to remain vacant.
2.3 Rent-Up Periods and Occupancy Procedures.
2.3.1 During the Initial Rent-Up, the Very Low Income Units occupied by
Very Low Income households, plus those Units held available for occupancy by such
tenants, shall be equal to nineteen (19) units.
2.3.2 During the Initial Rent-Up, the Low Income Units occupied by Low
Income households, plus those Units held available for occupancy by such tenants,
shall be equal to five (5) units.
2.3.4 Subsequent to the Initial Rent-up, and subject to the terms of this
Plan, Owner shall have the right, from time to time, to re-designate Very Low, and Low
Income Units so long as: (1) the Unit Allocation remains substantially the same
Page 8 of 17
120
throughout the Term, but in no event shall the number of Very Low or Low Income
Units, occupied by or held vacant and available for occupancy by certified eligible Very
Low or Low Income Tenants as applicable, be fewer than twenty-four (24); and (2)
Owner provides written notice to the City of such re-allocation.
2.3.5 In connection with the Initial Lease-Up of the Project, Owner will
adopt outreach programs to locate qualified tenants for the Project and shall establish
such procedures for occupancy, rental, and rent grievances as may be reasonably
required by the City. Not later than ten (10) days prior to the commencement of
marketing, Owner shall prepare and submit to the City for reasonable approval a
marketing and outreach program which shall contain, among other things, the following:
how a potential tenant would apply to rent a Unit in the Project, including where to
apply, applicable income limits and rent levels; support documentation needed such as
pay stubs, tax returns, or confirmation of disability, if applicable, a description of
procedures Owner will follow to publicize vacancies in the Project, including notice in
newspapers of general circulation, including at least one Spanish-language newspaper
and mailing notices of vacancies to or contacting by telephone potential tenants on the
waiting list maintained by Owner. Notices shall also be given to organizations in
Ventura County which provide referrals or other services to persons with disabilities.
2.4 Affordable Rent. Monthly rent shall be calculated in accordance with
California Health and Safety Code Section 50053. "Family size appropriate to the Unit",
as shown on Attachment D is defined in Section 50052.5(h) of the California Health and
Safety Code to be 3 persons for a 2 bedroom unit and 4 persons for a 3 bedroom unit.
Currently monthly rent is calculated as:
2.4.1. Monthly rent charged to Very Low Income Tenants shall be no
greater than thirty percent (30%) of fifty percent (50%) of County Median Income,
adjusted for family size appropriate for the Unit, less the Utility Allowance.
2.4.2 Monthly rent charged to Low Income Tenants shall be no greater
than thirty percent (30%) of sixty percent (60%) of County Median Income, adjusted for
family size appropriate for the Unit, less the Utility Allowance.
2.5 Alternative Affordable Rent Calculations
In the event that requirements or practices of the California Tax Credit Allocation
Committee (CTAC), or other entity or entities similarly associated with anticipated
financing of the construction of this project, or future prudent refinancing of this project,
utilizes definitions, sources of information, etc., other than those which have been
herein defined and utilized in calculating Affordable Rent, then the procedure or input
which produces the lowest affordable rent, will prevail.
2.6 Income Recertification; Rent Increases.
2.6.1 Owner shall cause the income of each Tenant of an Affordable Unit
to be re-certified on an annual basis on the anniversary date of each such tenant's initial
rental date. This recertification shall be submitted to the City within thirty (30) days of
such action.
Page 9 of 17
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2.6.2 Except as provided in Section 2.7 below, rents for the Affordable
Units may be increased only once per year, concurrently with or subsequent to any
increase in the County Median Income when and as determined by HCD. The rents
charged for the Affordable Units following such an increase, or upon a vacancy and new
occupancy by a Very Low or Low Income Tenant, as the case may be, shall not exceed
the allowable rent calculated in compliance with Sections 2.4.1, 2.4.2, and 2.5 of this
Plan.
2.7 Increased Income of Occupying Households.
2.7.1 If, upon income recertification, the Owner determines that the
household income of a Very Low Income Tenant has increased above the maximum
allowable household income of a Very Low Income Tenant, to not more than Low
Income, then the Owner shall not be required to evict the Tenant and the monthly rent
charged to such Tenant shall be no more than one twelfth (1/12) of thirty percent (30%)
of sixty (60%) of the County Median Income for the size household appropriate to the
unit, less the utility allowance. In this event, the next available unit that was previously a
Low Income unit must be rented to or held vacant and available for immediate
occupancy by a Very Low Income household, as the case may be, at an affordable rent
(1/12 of 30% of 50% of Median Income, in the case of a Very Low Income unit, both of
which are net of the utility allowance).
2.7.2 If, upon income re-certification, the Owner determines that the
income of a tenant occupying one of the Affordable Units has increased and now
exceeds that of a Low Income household, the Tenant is no longer eligible to rent the
unit, and the Owner shall provide written notice to the Tenant to vacate the unit within
six (6) months.
2.7.3 A Unit occupied by a Very Low or Low Income Tenant shall be
deemed, upon the termination of such household's occupancy, to be continuously
occupied by a Very Low or Low Income Tenant, as applicable, until re-occupied by
another tenant, at which time the character of the Unit shall be re-determined.
2.8 Specific Enforcement of Affordability Restrictions.
2.8.1 Owner hereby agrees that specific enforcement of Owner's
agreement to comply with the allowable rent and occupancy restrictions of this Plan is
one of the reasons for the City's entering into the DDA and providing the Density Bonus.
2.8.2 Owner further agrees that, in the event of Owner's breach of such
requirements, potential monetary damages to City, as well as prospective Very Low and
Low Income Tenants would be difficult, if not impossible, to evaluate and quantify.
2.8.3 Therefore, in addition to any other relief to which the City may be
entitled as a consequence of the breach hereof, Owner agrees to the imposition of the
remedy of specific performance against it in the case of any event of default by Owner
in complying with the allowable rent, occupancy restrictions or any other provision of
this Plan.
Page 10 of 17
122
2.9 City's Option to Place Tenants.
2.9.1 Units. City has the right, at its option, to place tenants from time to
time in vacant Units in the Project, including but not limited to persons and households
who need housing as the result of having been relocated from housing within the City of.
Moorpark by the action of the City or another public City, or other similar reason (a
"Qualifying Event"). The City shall have the right, in its sole discretion, and hereby
notifies Owner that City intends to utilize its option and right to place into vacant Units in
the Project eligible Very Low or Low Income households. From time to time and at any
time during the Term, City may give written notice to Owner (the "Option Notice") that
City intends to exercise its option as to one or a specified number more than one of the
next available Units, as provided in paragraphs a. and b. of this Section 2.9.1, below.
City shall have the right to subsidize the rents otherwise payable pursuant to this Plan
by any Very Low Income Tenants, and, to the extent the City determines it necessary,
the City may subsidize the rents of Very Low Income Tenants placed in vacant Units by
the City in accordance with this Section 2.9. For purposes of this Plan, any tenant who
is referred to the Project by the City as the result of a Qualifying Event, and who
satisfies the income eligibility requirements of this Plan for the available unit, shall be
deemed an eligible Very Low Income Tenant.
a. Initial Rent-Up. The City may give one or more Option Notices at any time
following the execution of the Agreement and prior to the leasing up of all the Affordable
Units and City shall have the exclusive right for ten (10) days after delivery of such
Option Notice to place tenants into all or any number of the then un-rented Affordable
Units, subject to the terms of this Plan. The option shall be exercised for each
Affordable Unit listed in an Option Notice as follows: within ten (10) days after receipt of
an Option Notice during Initial Rent-Up (the "Application Date"), the tenant referred by
City shall go to Owner's rental office to fill out an application form. City's option to place
a tenant into any such Affordable Unit shall lapse if, by the end of the ten (10) day
period following delivery of an Option Notice, a qualified tenant referred by City has not
filled out the application form and does not subsequently sign Owner's standard form of
lease.
b. Subsequent to Initial Rent-Up. Subsequent to Initial Rent-Up, after the
receipt of an Option Notice from City, Owner shall give written notice to the City upon
any vacancy of an Affordable Unit ("Vacancy Notice"), and City shall have the exclusive
right for ten (10) days after receipt of such Vacancy Notice, to place a qualified tenant
into such vacated Affordable Unit providing said tenant meets the income level of the
vacated Affordable Unit. The option shall be exercised for each Affordable Unit listed in
a Vacancy Notice as follows: within ten (10) days after receipt of a Vacancy Notice (the
"Application Date"), the qualified tenant referred by City shall go to Owner's rental office
to fill out an application form. City's option to place a tenant into any such Affordable
Unit shall lapse if, by the end of the ten (10) day period following delivery of a Vacancy
Notice, a qualified tenant referred by City has not filled out the application form and
does not subsequently sign Owner's standard form of lease.
2.9.2 Eligibility. Any applicant proposed as a tenant for the Affordable
Units subject to this Section 2.8.2. shall be required to comply with all customary rental
Page 11 of 17 •
123
agreement or lease provisions. As with any other tenant of the Project, Owner shall
have the right to terminate such tenants tenancy if such tenant breaches the standard
lease or rental agreement provisions. Owner shall accept as tenants, on the same basis
as all other prospective tenants, Very Low and Low Income who are recipients of
federal certificates or vouchers for rent subsidies pursuant to the existing program under
Section 8 of the United States Housing Act of 1937, as amended, or its successor
("Housing Act"). The preceding requirement applies to all units in the Project, including
the Affordable Units and the non-restricted units. Owner shall not permit any selection
criteria to be applied to Section 8 certificate or voucher holders that is more
burdensome than the criteria applied to all other prospective tenants.
2.10 Priority for Moorpark Residents. To the extent permitted by applicable
state and federal law, priority shall be granted to eligible Moorpark residents exclusively
for the first thirty (30) days of project lease-up and should be a general rule for the Term
of the Agreement.
2.11 Reporting Requirements.
2.11.1 From the commencement of construction until the end of the first
quarter or the end of the calendar quarter in which construction of the Project was
completed, whichever occurs later, Owner shall prepare and submit to the City, on a
monthly basis, written reports, setting forth the rental activity for the previous month,
and the current total number of Affordable Units occupied by tenants.
2.11.2 Commencing with the first full calendar quarter after the last period
covered by monthly reports pursuant to Section 2.11.1, Owner shall prepare and submit
to the City, on a quarterly basis, not later than the 15th day of each calendar quarter, a
Certificate of Continuing Program Compliance in a form similar to Attachment "3"
hereto, or other form Owner may use upon City approval, stating: (a) the number and
percentage of Affordable Units in the Project which were occupied by Very Low and
Low Income Tenants, or held vacant and available for occupancy by such Tenants
during said period; and (b) that to the knowledge of the Owner, no default has occurred
under the provisions of this Plan.
2.11.3 Owner shall prepare and submit to the City, on an annual basis, a
report in form and substance reasonably satisfactory to the City, not later than March
31st of each year for the preceding calendar year, summarizing the vacancy rate of the
Affordable Units in the Project on a month-to-month basis for such calendar year.
ARTICLE 3 OPERATIONS
3.1 Management Agent.
3.1.1 The Project shall at all times be managed by the Owner or an
experienced third-party management agent with demonstrated ability to operate
residential housing in a manner that will provide decent, safe and sanitary residential
facilities to occupants thereof, including experience in complying with reporting
requirements and occupancy restrictions similar to those imposed upon the Project by
the terms of this Plan.
Page 12 of 17
124
3.12 As of the date of the Agreement, the Owner directly or through an
affiliate may be the "management agent" of the Project. The Owner may retain on-site
personnel and other consultants and service providers to assist Owner to operate the
Project effectively and in compliance with the provisions of this Plan and state and
federal law.
3.1.3 In the event that Owner seeks to appoint a replacement
management entity to manage the Project, the Owner shall advise the City of the
identity of any such qualified management agent not later than thirty (30) days prior to
the effective date of such appointment. The Owner shall also submit such additional
information about the background, experience and financial condition of any proposed
management agent as is reasonably requested by the City.
3.1.4 Upon the City's request, the Owner shall cooperate with the City in
an annual review of the management practices and status of Project. The purpose of
each annual review will be to enable the City to determine if the Project is being
operated and managed in accordance with the requirements and standards of this Plan.
3.2 Day-to-Day Management Responsibility. The following procedure shall be
followed to ensure effective day-to-day operation of the Project and cooperation
between the City, the Owner and the management agent:
3.2.1 Day-to-day operation of the Project will be under the direct
supervision of an on-site management agent or resident manager who will report to the
management agent.
3.2.2 There will be regular meetings as necessary between the Owner
and the management agent for the purpose of reviewing policies, procedures, resident
relations and budget control.
3.3 Staffing Arrangements. Owner shall provide for adequate on-site staffing
of management personnel to manage the Project in a prudent and businesslike manner.
In addition, Owner shall provide such security services as may be necessary or
appropriate for the Project. All hiring of on-site personnel shall conform to applicable
equal opportunity guidelines, without regard to race, religion, color, national origin or
sex. All hiring materials will indicate that the Project is an "Equal Opportunity Employer."
Employment grievances, terminations and promotions will be conducted according to
personnel policies and procedures which conform with equal opportunity laws. All
personnel employed at the Project will receive training specific to Owner's policies and
procedures.
ARTICLE 4 MAINTENANCE
4.1 Maintenance, Repair, Alterations. Owner shall maintain and preserve the
Project and the Property in good condition and repair and in a prudent and businesslike
manner. Restoration of damaged improvements shall be made to a condition as good
as existed prior to the damage. Owner shall complete promptly and in a good and
workmanlike manner any improvements which may now or hereafter be constructed on
the Project or the Property and pay when due all claims for labor performed and
material furnished therefor. Owner shall comply with all laws, ordinances, rules,
Page 13 of 17
125
regulations, covenants, conditions, restrictions, and orders of any governmental
authority now or hereafter affecting the conduct or operation of the Project and of
Owner's business on the Project or any part thereof or requiring any alteration or
improvement to be made thereon. Owner shall maintain abutting grounds, sidewalks,
roads, parking, and landscaped areas in good and neat order and repair. Owner hereby
agrees that City may conduct from time to time through representatives of its own
choice who are properly identified as agents of the City, upon reasonable notice and
subject to reasonable security and safety procedures and rights of tenants in
possession, on-site inspections and observation of such records of Owner relating to
the Project and the Property as City reasonably deems to be necessary or appropriate
in order to monitor Owner's compliance with the provisions of this Plan. The Owner
shall conduct an ongoing maintenance program, which shall include the following:
(a) Scheduled preventative maintenance and repair of installed
equipment in accordance with manufacturers' recommendations.
(b) Routine repairs to kitchen appliances, electrical, plumbing and
heating equipment.
(c) Preventative annual apartment inspections to regularly and
consistently ascertain the condition of each apartment unit.
(d) Preventative regular inspections of common areas and equipment
as well as regular schedules (daily, weekly, monthly, quarterly, etc.) for maintaining the
same. This will include maintenance of exterior areas to keep grounds free of graffiti,
litter, trash and paper. Parking areas will be maintained in good repair and free from dirt
and litter. Common areas such as hallways and laundry rooms will be swept and
cleaned regularly and kept free of trash and other debris. Garbage removal will be
provided through arrangements with a contractor, consistent with applicable City
ordinances. The trash areas will be swept regularly and scrubbed with disinfectant
when necessary. Extermination services will be contracted with to provide pest control
consistent with high quality apartment management practices.
(e) Contract with a landscape firm to maintain the landscaped areas in
an attractive and healthy condition.
(0 Interior painting and carpet cleaning or replacement in individual
apartment units shall be based on need, substantiated by the annual physical
inspection, or as occupancy changes, or as the Owner or its management agent may
otherwise deem necessary.
(g) Owner will employ a maintenance work order procedure in the
Project to adequately document requests for work and promptness within which the
work has been completed.
4.2 Disclaimer. Nothing in this Plan shall make City responsible for making or
completing capital repairs or replacements to the Project or the Property or require City
to expend funds to make or complete the same. Upon three (3) business days' notice
to Owner, properly identified representatives of City may enter onto the Property during
normal business hours (subject to the rights of tenants under their leases) to inspect the
progress of any capital repairs and replacements and the general condition of the
Page 14 of 17
126
Project or the Property; provided, in the event of emergencies, City shall give only such
notice to Owner as may be practicable under the circumstances.
4.3 Mechanics Liens. Owner shall pay and promptly discharge when due all
liens, encumbrances and charges upon the Project, the Property or any part thereof
relating to mechanics, laborers, materialmen's, suppliers or vendor's liens or rights.
Owner shall have the right to contest in good faith the validity of any such lien,
encumbrance or charge.
ARTICLE 5 GENERAL PROVISIONS
5.1 General Use Restrictions. The Project and Property will be used only for
purposes consistent with this Plan and with the Redevelopment Plan for the City of
Moorpark Redevelopment Project Area, subject to the affordability and income
restrictions set forth herein.
5.2 Residential Rental Property.
5.2.1 The Project and Property will be held and used for the purpose of
providing multifamily residential rental housing, and Owner shall own, manage and
operate, or cause the management and operation of, the Project to provide multifamily
rental housing and for no other purposes, other than such purposes which are ancillary
to and supportive of multifamily rental housing.
5.2.2 The facilities functionally related and subordinate to the Project
include facilities for use by the tenants thereof, including for example, swimming pools,
other recreational facilities and meeting rooms, parking areas, and other facilities which
are reasonably required for the Project (heating and cooling equipment, trash disposal
equipment, and Units set aside and used for residential managers or maintenance
personnel and as a leasing office).
5.2.3 The Affordable Units in the Project shall not be used on a transient
basis and shall not be rented for a period of less than thirty (30) consecutive days. None
of the Units in the Project will at any time be converted to, leased or rented as for-sale
condominiums, community apartments, planned development, stock cooperative, or
other common interest development, a congregate care or assisted living facility,
fraternity house, sorority house, rooming house, hospital, nursing home, sanitary or rest
home, or trailer court or park.
5.3 Lease Provisions. The provisions relating to certification and
recertification of income in the form of lease or rental agreement used by the Owner for
the lease or rental of the Affordable Units shall be subject to review and approval by the
City, the approval of which shall not be unreasonably withheld. If the lease or rental
agreement provisions specified in this Section 5.3 are not approved or disapproved
within thirty (30) days after submittal to City, they shall be deemed approved.
5.3.1 Each lease: "The lessee herein covenants by and for himself or
herself, his or her heirs, executors, administrators, and assigns, and all persons
Page 15 of 17
127
claiming under or through him or her, and this lease is made and accepted upon and
subject to the following conditions:
"That there shall be no discrimination against or segregation of any person
or group of persons, on account of any basis listed in subdivision (a) or (d) of Section
12955 of the Government Code, as those bases are defined in Sections 12926,
12926.1, subdivision (m) and paragraph (I) of subdivision (p) of Section 12955, and
Section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee
himself or herself, or any person claiming under or through him or her, establish or
permit any such practice or practices of discrimination or segregation with reference to
the selection, location, number, use, or occupancy, of tenants, lessees, sublessees,
subtenants, or vendees in the premises herein lease.
"Notwithstanding the immediately preceding paragraph, with respect to
familial status, the immediately preceding paragraph shall not be construed to apply to
housing for older persons, as defined in Section 12955.9 of the Government Code.
With respect to familial status, nothing in the immediately preceding paragraph shall be
construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the Civil Code,
relating to housing for senior citizens. Subdivision (d) of Section 51 and Section 1360 of
the Civil Code and subdivisions (n), (o), and (p) of Sections 12955 of the Government
Code shall apply to the immediately preceding paragraph."
5.4 Security Deposits. The Owner shall not require rental deposits in excess
of one-month's rent for any Affordable Unit, but may require refundable deposits for pet
damages, keys and garage door openers, not in excess of market rates.
5.5 Additional Information; Books and Records. Owner shall provide, within
thirty (30) days of request, additional information concerning the Affordable Units and/or
Affordable Unit Allocation reasonably requested by the City in writing. The City shall
have the right to examine and make copies of all books, records or other documents
maintained by Owner or by any of Owner's agents which pertain to any Affordable Unit.
Record-keeping Attachments attached to this Plan may be changed at City's option with
thirty (30) days' notice.
5.6 Title of Parts and Sections. Any titles of the parts, sections or subsections
of this Plan are inserted for convenience of reference only and shall be disregarded in
construing or interpreting any part of its provision.
5.7 Enforcement of Plan. This Plan, without regard to technical classification
or designation, shall be binding for the benefit of the City, and such covenants shall run
in favor of the City for the entire period during which such covenants shall be in force
and effect, without regard to whether the City is or remains an owner of any land or
interest therein to which such covenants relate. The City, in the event of any breach of
any such covenants, shall have the right to exercise all the rights and remedies, and to
maintain any action at law or suits in equity or other proper proceedings to enforce the
curing of such breach.
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5.8 Binding on Successors and Assigns. Notwithstanding any other provision
of law, this Plan shall run with the land and shall be enforceable against the Owner and
successors in interest by the City. The requirements of this Plan shall remain in effect
with respect to the Property for the Term, as determined by the City.
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ATTACHMENT 1
Legal Description
THE LAND REFERRED TO IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY
OF VENTURA, AND IS DESCRIBED AS FOLLOWS:
130
12853-0001\1841523v1.doc
ATTACHMENT 2
New Certification /Recertification Unit Number
INCOME COMPUTATION AND CERTIFICATION
NOTE TO APARTMENT OWNER: This form is designed to assist you in computing
Annual Income in accordance with the method set forth in the Department of Housing
and Urban Project ("HUD") Regulations (24 CFR 813). You should make certain that
this form is at all times up to date with the HUD Regulations. All capitalized terms used
herein shall have the meaning set forth in the Regulatory Agreement.
Re: (NAME and ADDRESS of Apartment Building)
Moorpark
I/We the undersigned state that I/we have read and answered fully, frankly and
personally each of the following questions for all persons who are to occupy the unit
being applied for in the above apartment project. Listed below are the names of all
persons who intend to reside in the unit:
1. 2. 3. 4. 5.
Name of Members Relationship
Of the to Head of Social Place of
Household Household Age Security Employment
Number
5.31 Income Computation
6. The total anticipated income, calculated in accordance with this paragraph 6, of all
persons (except children under 18 years) listed above for the 12-month
period beginning the earlier of the date that I/we plan to move into a unit or sign a lease
fora unit is $
Included in the total anticipated income listed above are:
1. If this form is being completed in accordance with recertification of a Lower Income Tenants or Very Low Income
Tenants occupancy of a Lower Income Unit or a Very Low Income Unit, respectively,this form must be completed based
upon the current income of the occupants.
•
131
12853.0001\1541523v1.doc •
(a) the full amount, before any payroll deductions, of wages and salaries, overtime pay,
commissions, fees, tips and bonuses and other compensation for personal services;
(b) the net income from the operation of a business or profession. Expenditures for
business expansion or amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowances for depreciation of assets used in
a business or profession may be deducted, based on straight line depreciation, as
provided in Internal Revenue Service regulations. Any withdrawal of cash or assets
from the operation of a business or profession will be included in income, except to the
extent the withdrawal is reimbursement of cash or assets invested in the operation by
the family;
(c) interest and dividends and other net income of any kind from real or personal
property. Expenditures for amortization of capital indebtedness shall not be used as
deductions in determining net income. An allowance for depreciation is permitted only
as authorized in paragraph (6)(b) of this section. Any withdrawal of cash or assets from
an investment will be included in income, except to the extent the withdrawal is
reimbursement of cash or assets invested by the family. Where the family has net
family assets in excess of $5,000, annual income shall include the greater of the actual
income derived from all net family assets or a percentage of the value of such assets
based on the current passbook savings rate, as determined by the Department of
Housing and Urban Development;
(d) the full amount of periodic payments received from Social Security, annuities,
insurance policies, retirement funds, pensions, disability or death benefits, and other
similar types of periodic receipts, including any lump sum amount except deferred
periodic amounts from supplemental security income and social security benefits that
are received in a lump sum amount or in prospective monthly amounts;
(e) payments in lieu of earnings, such as unemployment and disability compensation,
workers' compensation and severance pay;
(f) welfare assistance. If the welfare assistance payment includes an amount
specifically designated for shelter and utilities that is subject to adjustment by the
welfare assistance agency in accordance with the actual cost of shelter and utilities, the
amount of welfare assistance income to be included as income shall consist of:
(1) the amount of the allowance or grant exclusive of the amount specifically
designated for shelter or utilities; plus
(2) the maximum amount that the welfare assistance agency could in fact
allow the family for shelter and utilities. If the family's welfare assistance is
ratably reduced form the standard of need by applying a percentage, the amount
calculated under this paragraph shall be the amount resulting from one
application of the percentage;
(g) periodic and determinable allowances, such as alimony and child support payments,
and regular contributions or gifts received from organizations or from persons not
residing in the dwelling;
132
(h) all regular pay, special pay and allowances of a member of the Armed Forces
except the special pay to a family member serving in the Armed Forces except the
special pay to a family member serving in the Armed Forces who is exposed to hostile
fire; and
Excluded from such anticipated income are:
(a) income from employment of children (including foster children) under the age of 18
years;
(b) payments received for the care of foster children or foster adults (usually persons
with disabilities, unrelated to the tenant family, who are unable to live alone);
(c) lump sum additions to family assets, such as inheritances, insurance payments
(including payments under health and accident insurance and workers' compensation),
capital gains and settlement for personal or property losses except payments in lieu of
earnings, such as unemployment and disability compensation, worker's compensation
and severance pay;
(d) amounts received by the family that are specifically for, or in reimbursement of,
the cost of medical expenses for any family member;
(e) income of a live-in aide, as defined by 24 CFR §5.403;
(f) the full amount of student financial assistance paid directly to the student or to the
educational institution;
(g) the special pay to a family member serving in the Armed Forces who is exposed to
hostile fire;
(h) (1) amounts received under training programs funded by the Department of
Housing and Urban Development;
(2) amounts received by a person with a disability that are disregarded for a
limited time for purposes of Supplemental Security Income eligibility and benefits
because they are set aside for use under a Plan to Attain Self-Sufficiency (PASS);
(3) amounts received by a participant in other publicly assisted programs
which are specifically for or in reimbursement of out-of-pocket expenses incurred
(special equipment, clothing, transportation, child care, etc.) and which are made solely
to allow participation in a specific program;
(4) amounts received under a resident service stipend is a modest amount
(not to exceed $200 per month) received by a resident for performing a service for the
Public Housing Issuer or owner, on a part-time basis, that enhances the quality of life in
the development. Such services may include, but are not limited to, fire patrol, hall
monitoring, lawn maintenance, and resident initiatives coordination. No resident may
receive more than one such stipend during the same period of time;
(5) incremental earnings and benefits resulting to any family member from
participation in qualifying State or local employment training programs (including
training programs not affiliated with a local government) and training of a family member
as resident management staff. Amounts excluded by this provision must be received
133
under employment training programs with clearly defined goals and objectives, and are
excluded only for the period during which the family member participates in the
employment training program.
(i) temporary , nonrecurring or sporadic income (including gifts);
(j) reparation payments paid by a foreign government pursuant to claims filed under
the laws of that government by persons who were persecuted during the Nazi era;
(k) earnings in excess of $480 for each full-term student 18 years old or older
(excluding the head of household and spouse);
(I) adoption assistance payments in excess of$480 per adopted child; and
(m) deferred periodic payments of supplemental security income and social security
benefits that are received in a lump sum amount or in prospective monthly amounts;
(n) amounts received by the family in the form of refunds or rebates under State or
local law for property taxes paid on the dwelling unit;
(o) amounts paid by a State agency to a family with a member who has a
developmental disability and is living at home to offset the cost of services and
equipment needed to keep the developmentally disabled family member at home; or
(p) amounts specifically excluded by any other Federal statute from consideration as
income for purposes of determining eligibility or benefits under a category of assistance
programs that includes assistance under any program to which the exclusions set forth
in 24 CFR §5.609(c) apply.
7. Do the persons whose income or contributions are included in item 6 above:
(a) have savings, stocks, bonds, equity in real property or other form of capital
investment (excluding the values of necessary items of personal property such as
furniture and automobiles and interests in Indian trust land)
Yes No; or
(b) have they disposed of any assets (other than at a foreclosure or bankruptcy sale)
during the last two years at less than fair market value?
Yes No
(c) If the answer to (a) or (b) above is yes, does the combined total value of all such
assets owned or disposed of by all such persons total more than $5,000?
Yes No
(d) If the answer to (c) above is yes, state:
(1) the combined total value of all such assets: $
134
(2) the amount of income expected to be derived from such assets in the 12-month
period beginning on the date of initial occupancy in the unit that you propose to rent:
$ , and
(3) the amount of such income, if any, that was included in item 6 above:
8. (a) Are all of the individuals who propose to reside in the unit full-time students*?
Yes No
*A full-time student is an individual enrolled as a full-time student during each of 5
calendar months during the calendar year in which occupancy of the unit begins at an
educational organization which normally maintains a regular faculty and curriculum and
normally has a regularly enrolled body of students in attendance or is an individual
pursuing a full-time course of institutional or farm training under the supervision of an
accredited agent of such an educational organization or of a state or political subdivision
thereof.
(b) If the answer to 8(a) is yes, is at least 2 of the proposed occupants of the unit a
husband and wife entitled to file a joint federal income tax return?
Yes No
9. Neither myself nor any other occupant of the unit I/we propose to rent is the owner
of the rental housing project in which the unit is located (hereinafter the "Owner"), has
any family relationship to the Owner; or owns directly or indirectly any interest in the
Owner. For purposes of this paragraph, indirect ownership by an individual shall mean
ownership by a family member, ownership by a corporation, partnership, estate or trust
in proportion to the ownership or beneficial interest in such corporation, partnership,
estate or Trustee held by the individual or a family member; and ownership, direct or
indirect, by a partner of the individual.
10. This certificate is made with the knowledge that it will be relied upon by the Owner
to determine maximum income for eligibility to occupy the unit; and I/we declare that all
information set forth herein is true, correct and complete and based upon information
I/we deem reliable and that the statement of total anticipated income contained in
paragraph 6 is reasonable and based upon such investigation as the undersigned
deemed necessary. •
11. I/We will assist the Owner in obtaining any information or documents required to
verify the statements made herein, including either an income verification from my/our
present employer(s) or copies of federal tax returns for the immediately preceding
calendar year.
12. I/We acknowledge that I/we have been advised that the making of any
misrepresentation or misstatement in this declaration will constitute a material breach of
my/our agreement with the Owner to lease the unit and will entitle the Owner to prevent
or terminate my/our occupancy of the unit by institution of an action for ejection or other
appropriate proceedings.
135
I/We declare under penalty of perjury that the foregoing is true and correct.
Executed this day of , 20 (year) in the City
of Moorpark , California
Applicant Applicant
Applicant Applicant
[Signature of all persons (except children under the age of 18 years) listed in
number 2 above required]
136
FOR COMPLETION BY APARTMENT OWNER ONLY:
1. Calculation of eligible income:
a. Enter amount entered for entire household above: $
b. (1) If there is an amount entered above for savings, stocks and bonds, and
enter the amount ($ );
(2) Multiply the amount entered times the current passbook savings rate as
determined by HUD to determine what the total annual earnings on the amount if
invested in passbook savings ($ );
(3) Add the amount in (1) and (2) above:$
c. TOTAL ELIGIBLE INCOME (line 1.a plus line 1.b(3):
2. The amount entered in 1.c:
Qualifies the applicant(s) as a Moderate-Income Tenant(s).
Qualifies the applicant(s) as a Lower-Income Tenant(s).
Qualifies the applicant(s) as a Very-Low Income Tenant(s).
3. Number of apartment unit assigned: Bedroom size:
Rent:$
4. This apartment unit (was/was not) last occupied for a period of 31 or more
consecutive days by persons whose aggregate anticipated annual income as certified in
the above manner upon their initial occupancy of the apartment unit qualified them as a
Lower-Income Tenant(s).
137
5. Method used to verify applicant(s) income:
Employer income verification.
Copies of tax returns.
Other(
Manager Date
138
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140
INCOME VERIFICATION
(FOR EMPLOYED PERSONS)
The undersigned employee has applied for a rental unit located in a project financed
under the Multifamily Revenue Bond Program for persons of low and very low income.
Every income statement of a prospective tenant must be stringently verified. Please
indicate below the employee's current annual income from wages, overtime, bonuses,
commissions or any other form of compensation received on a regular basis.
EMPLOYER
Annual Wages (Gross) Other Income
Avg. Total Hours
Overtime Worked Weekly
Bonuses Total Current Income
Commissions Year-to-Date Income
Current Base Pay
Pay Period: 0 0 Bi-weekly 0 Monthly 0 Other
Weekly
Do you anticipate an increase in the base pay over the next 12 months? 0 Yes 0 No
If so, please indicate the amount of anticipated increase $ per
start date:
NOTE TO EMPLOYER: This form is an estimate of anticipated earnings solely for the
purpose of determining income status. This form does not constitute a promise by the
employer to the employee of guaranteed wages, bonuses or raises.
I hereby certify that the statements above are true and complete to the best of my
knowledge.
Date Employer
Signature Title
Employer's Address Employer's Phone Number
141
12853-0001\1841523v1.doc
APPLICANT
I hereby grant you permission to disclose my income to
in order that they may determine my income
eligibility for rental of an apartment located in their project which has been financed
under the Multifamily Revenue Bond Program.
Date
Print Name (Resident) Signature (Resident)
Please send to:
(Management Co.
or Owner)
12853-0001\1841523U1.doc 142
INCOME VERIFICATION
ffor self-employed persons)
I hereby attach copies of my individual federal and state income tax returns for the
immediately preceding calendar year and certify that the information shown in such
income tax returns is true and complete to the best of my knowledge.
Signature Date
143
12853-000111841523v1.doc
INCOME VERIFICATION
(for Social Security recipients)
TO: SOCIAL SECURITY ADMINISTRATION
Ladies and Gentlemen:
I have applied for a rental unit located in a project financed under the
Multifamily Housing Program for persons of very
low income: Every income statement of a prospective tenant must be stringently
verified. In connection with my application for a rental unit, I hereby authorize the
Department of Social Services to release to
the specific information requested
below:
Date:
Signature:
Social Security No.:
Name (Print):
Address(Print)
Monthly Benefits Began/Will Begin:
Social Security Benefit Amount:
Other Benefit(s): Amount: $
Medicare Deductions: $
Are benefits expected to change? 0 Yes 0 No
If yes, please state date and amount:
Date: of change
Amount $
If recipient is not receiving full benefit amount; please indicate reason and date
recipient will start receiving full benefit amount:
144
12853-0001\1841523v1 doc
Reason:
Date of Resumption:
Amount:
Date:
Signature:
Title:
Please send form to:
145
12853-0001\1841523v1.doc
INCOME VERIFICATION
(for Department Social Services recipients)
TO: CALIFORNIA DEPARTMENT OF SOCIAL SERVICES
Ladies and Gentlemen:
I am receiving assistance through yout office. I have applied for a rental unit
located in project financed under the
Multifamily Housing Program for persons of very low income. Every income statement
of a prospective tenant must be stringently verified. In connection with my application
for a rental unit, I hereby authorize the Department of Social Services to release to
the specific information requested below:
Date:
Signature:
Caseload Number:
Name (Print):
Case Number:
Case Worker:
1. Number of persons included in budget:
2. Total monthly budget $
(a) Amount of grant $
(b) Date aid last began:
(c) Other income and source:
(d) Is other income included in total budget? 0 Yes 0 No
3. Please specify type of aid: (AFDC, FR, Food Stamps, ANB, MediCal,
Etc.):
4. If recipient is not receiving full grant, please indicate reason:
❑ Overpayment due to client's failure to report other income
❑ Computation error
14 6
12853-0001\1841523v1.doc
Other:
Date when full grant will resume:
Date:
Case Worker's Signature:
Telephone:
District Office:
Your very early response will be appreciated.
Please return form to:
147
12853-0001\1841523v1.doc
DECLARATION OF NO INCOME
As managing agents for
(Name of Development)
assisted by the Low Income Housing Program, we are required to verify all income. To
comply with this requirement, we ask your cooperation in supplying the information
requested in the Certification below. This information will be held in strict confidence
and used only for the purpose of establishing eligibility.
Name of Management Company
By:
Name and Title
CERTIFICATION
, do hereby certify that I do NOT receive income
from ANY source. I understand sources of income include, but are not limited to the
following:
Employment Study Pensions
Unemployment Self Employment General Assistance
Compensation AFDC Disability
Social Security SSI Union Benefits
Workers Compensation Retirement Funds Family Support
Child Support Alimony Annuities
Education Grants/Work Income from Assets
I understand that should I become gainfully employed or begin receiving income from
any source, I must report the information to the manager immediately.
I certify that the foregoing information is true, complete and correct. Inquiries may be
made to verify statements herein. I also understand that false statements or omissions
are grounds for disqualification and/or prosecution under the full extent of California law.
Signature Date
Witness Signature Date
148
12853-0001\1841523v1.doc
Support Verification
Source's Mailing Address:
Phone #:
Fax #:
Recipient:
Federal law requires that we verify the annual income of all persons applying for
admissions to or living in a community that offers affordable housing. This community
operates under the guidelines of Section 42 of the Internal Revenue Code. To comply
with these requirements, we ask your cooperation in supplying the information
requested below regarding the above referenced individuals. This information will be
used only for determination of eligibility and/or rent computation. You will notice a
release of information is authorized by the applicant/tenant's signature below.
Your assistance in completing this form accurately and timely is greatly
appreciated!
Applicant/Tenant Release Statement
Applicant/Tenant Name:
I hereby authorize the release of the following information in order to determine my
eligibility for the Bond Program. Please complete the form in full and return it to the
MANAGEMENT COMPANY at your earliest convenience.
Signature:
Social Security #:
Please complete the following. If the monies are based on a percentage of the payor's
income, please indicate the average amount per period.
149
12853-0001\18415230 doc
Type of Benefit Amount Frequency
O Child Support ( ) weekly ( ) monthly (
yearly
O Family Support ( ) weekly ( ) monthly ( )
yearly
❑ Alimony ( ) weekly ( ) monthly ( )
yearly
❑ ( .) weekly ( ) monthly ( )
Other _ yearly
(Please list
type)
Are monies paid to offset an AFDC grant? 0 Yes 0 No
Do you anticipate any changes in the next 12 months? 0 Yes 0 No
Comments:
Signature of Source:
SSN#:
Date Completed Form:
12853-0001\1841523v1.doc 1 50
ATTACHMENT 3
CERTIFICATE OF CONTINUING PROGRAM COMPLIANCE
FOR THE [MONTH/QUARTER] ENDING
The undersigned, , as the authorized
representative of . (the "Owner"), has read and is thoroughly familiar
with the provisions of the Affordable Housing Implementation and Rental Restriction
Plan by and between Owner and the City of the City of Moorpark (the "City"), dated as
of , 2009.
As of the date of this Certificate, the following numbers of completed residential
Units in the Project (i) are occupied, or (ii) are currently vacant and being held available
for such occupancy and have been so held continuously since the date a Very Low
Income Tenant or Low Income Tenant vacated such Unit, as indicated:
Occupied by Very Low Income Tenants
Number of Units:
Occupied by Low Income Tenants
Number of Units:
Held vacant for occupancy continuously since last occupied by Very Low Income
Tenants and Low Income Tenants:
Vacant Units
Number:
Occupied Units
Number:
Very Low Income Tenants and Low Income Tenants who commenced occupancy of
Units during the preceding [month/quarter]:
Very Low Income:
Units Nos.:
Low Income:
Units Nos.
Attached is a separate sheet (the "Bond Program Report") listing, among other
items, the following information for each apartment Unit in the Project: the number of
each apartment Unit, the occupants of each Unit, the rental paid for each Unit and the
1rJ 1
12853-0001\1841523v1.doc
size and number of bedrooms of each Unit. It also indicates which Units are occupied
by Low Income Tenants and Very Low Income Tenantsand which Units became Low
Income Units and Very Low Income Units during the preceding [month/quarter]. The
information contained thereon is true and accurate.
The undersigned hereby certifies that (1) a review of the activities of the Owner
during such [month/quarter] and of the Owner's performance under the Affordable
Housing Implementation and Rental Restriction Plan, has been made under the
supervision of the undersigned; and (2) to the best of the knowledge of the undersigned,
based on the review described in clause (1) hereof, the Owner is not
1) in default under any of the terms and provisions of the above documents [or describe
the nature of any default in detail and set forth the measures being taken to remedy
such default].
By
Name:
Title:
15 2
12853-0001\1841523v1.doc
ATTACHMENT 4
TYPE OF UNIT, NUMBER OF UNITS,
HOUSEHOLD SIZE ADJUSTMENT AND UTILITY ALLOWANCE
Very-Low Income
Type Number Household Size Utility
of Unit of Units Adiustment Allowance
2-br 12 3 persons $_
3-br 7 4 persons $_
Total 19
Low Income
Type Number Household Size Utility
of Unit of Units Adjustment Allowance
2-br 4 3 persons $_
3-br 1 4 persons $_
Total 5
The above Adjustment for Household Size is intended to provide a single rental
rate applicable to eligible tenants for each type of unit, and, therefore, is applied
regardless of actual household size. The Owner may not charge additional rent based
on a larger actual household size.
Illustration: For example, the maximum rent for a Very Low Income Household
renting a 2-bedroom unit would be calculated as follows: 30% x 50% x the
Ventura County median income for a household of three divided by 12, less the
utility allowance [30% x 50% x $ divided by 12 less $_equals $ ].
Illustration: For example, the maximum rent for a Low Income Household renting
a 2-bedroom unit would be calculated as follows: 30% x 60% x the Ventura
County median income for a household of three divided by 12, less the utility
allowance.[30% x 60% x $ divided by 12 less $_equals $ ].
1 5 3
12853-000111841523v1.doc
EXHIBIT NO. 3
FORM OF ASSIGNMENT
AND ASSUMPTION AGREEMENT
12853-0001\1841523v1.dot 154
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement is entered into by and among the
THE CITY OF MOORPARK ("City"), AREA HOUSING AUTHORITY OF VENTURA
COUNTY (" ") and ("Assignee") with reference
to the following facts:
A. The City and Area Housing Authority of Ventura County have
heretofore entered into that certain Affordable Housing Agreement, dated as of
, 2015, including the Affordable Housing Implementation and Rental
Restriction Plan attached thereto (collectively, the "Agreement"). The Agreement is
incorporated herein by this reference.
B. Pursuant to the Agreement, AHA has agreed to include and
operate affordable units as part of a twenty-four (24) unit 100% multifamily residential
housing complex (the "Project") developed by AHA on certain real property described
therein as the "Property".
C. AHA has designated the Assignee identified above to take title to
the Property.
D. As contemplated by the Agreement, AHA intends to assign the
Agreement to Assignee, and Assignee intends to assume all rights and obligations of
AHA, as "Owner" thereunder.
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and other consideration, the receipt and sufficiency of which is hereby
acknowledged, the City, AHA and Assignee hereby agree as follows:
1. AHA hereby assigns to Assignee all of its right, title and interest in and to
the Agreement and Assignee hereby accepts such assignment, and assumes all of the
obligations of the Owner thereunder and agrees to be bound thereby in accordance with
the terms thereof.
2. Assignee shall accept title to the Property and be bound by the terms and
conditions of the Agreement in accordance with the terms thereof. The Agreement and
all its attachments and exhibits shall be referred to collectively as the "Agreement."
3. Assignee shall operate the Project in conformance with the Agreement.
4. Assignee shall assume and perform all executory obligations of the Owner
pursuant to the Agreement, without exception.
Assignment and Assumption Agreement
Page 1 of 3
15 5
12853-0001\1841523v1.doc
5. City hereby consents to and accepts the assumption of the Agreement by
Assignee.
6. City hereby releases AHA from any and all liability on or under the
Agreement arising after the date of this Assignment. In the event of any further
assignment subsequent to the assignment of the Agreement to the Assignee identified
above, the Assignee identified above shall not be'released from liability or obligation
under the Agreement except to the extent such release is expressly approved in writing
by the City upon the acceptance of an assignment and assumption agreement
applicable to such subsequent assignment, substantially in the form of this instrument.
7. The principal address of Assignee for purposes of the Agreement is as
follows:
[Name of Assignee]
8. This Agreement is made for the sole benefit and protection of the parties
hereto, and their successors and assigns, and no other person or persons shall have
any right of action or right to rely hereon. As this Agreement contains all the terms and
conditions agreed upon between the parties, no other agreement regarding the subject
matter thereof, shall be deemed to exist or bind any party unless in writing and signed
by the party to be charged. Wherever required, any consent or approval of either party
shall not be unreasonably withheld or delayed.
9. This Agreement may be executed in several duplicate originals, each of
which shall be deemed an original, but all of which together shall constitute one and the
same instrument, and shall become effective upon execution by the parties, as
indicated by the signatures below. The signature pages of one or more counterpart
copies may be removed from such counterpart copies and all attached to the same
copy of this Agreement, which, with all attached signature pages, shall be deemed to be
an original Agreement. When fully executed, the date of this Agreement shall be the
later of the dates indicated below:
Assignment and Assumption Agreement
Page 2 of 3
156
12853-0001\1841523v1.doc
IN WITNESS WHEREOF, AHA, City and Assignee have executed this
Agreement.
Area Housing Authority of Ventura County
By:
Name:
Title:
[NAME OF ASSIGNEE]
By:
The City of Moorpark hereby accepts and approves this Assignment and Assumption
Agreement.
CITY OF MOORPARK
By:
Name:
Title:
Assignment and Assumption Agreement
Page 3 of 3
157
12853-0001\1841523v1.doc
ATTACHMENT NO. 8
VENTURA COUNTY INCOME LIMITS (2015)
3 Persons 4 Persons
Very Low $40,800 $45,300
(50% Median)
Low $65,250 $72,500
(80% Median)
Median $80,350 $89,300
-75- 158
ATTACHMENT NO. 9
FORMS OF PROMISSORY NOTE AND DEED OF TRUST FOR CITY PURCHASE
LOAN AND PERMANENT LOAN
[BEHIND THIS PAGE]
[To be inserted at a later date. Promissory Note and Deed of Trust for Purchase Loan
and Permanent Loan will need to be approved by the City Council]
-76- 159
EXHIBIT E
REPORT OF THE CITY OF MOORPARK, ACTING AS THE SUCCESSOR HOUSING
AGENCY TO THE REDEVELOPMENT AGENCY OF THE CITY OF MOORPARK, ON
THE SALE OF REAL PROPERTY PURSUANT TO A PROPOSED DISPOSITION AND
DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND THE
AREA HOUSING AUTHORITY OF THE COUNTY OF VENTURA.
This report has been prepared pursuant to Section 33433 of the California
Health and Safety Code Section 33000, et seq., which requires a housing successor
agency, prior to selling or leasing any real property acquired in whole or in part, directly
or indirectly, with tax increment monies, to prepare a report which includes a copy of the
proposed sale and a summary which describes and specifies: (1) the cost of the
agreement to the housing successor agency; (2) the estimated value of the interest to
be conveyed or leased, determined at the highest and best uses permitted under the
redevelopment plan; (3) the estimated value of the interest to be conveyed, determined
at the use and with the conditions, covenants, and development costs required by the
sale, the purchase price and, if there is a difference between the fair market value
determined at its highest and best use consistent with the redevelopment plan, and the
purchase price, an explanation of the reasons for the difference; and (4) an explanation
of why the sale of the property will assist in the elimination of blight, with reference to all
supporting facts and materials relied upon in making this explanation.
I. PROPOSED SALE OF REAL PROPERTY
A copy of the proposed Disposition and Development Agreement (the
"Agreement") between the City of Moorpark, acting as the Successor Housing Agency
to the Redevelopment Agency of the City of Moorpark (the "City") and the Area Housing
Authority of the County of Ventura (the "AHA") is attached as Attachment 1 to this
report. The proposed Agreement provides for the sale of certain real property owned
by the City, located within the boundaries of the City of Moorpark, described in
Attachment 2 (the "Property") to this report. Under the terms of the Agreement, the
AHA shall purchase the Property for affordable housing purposes.
II. FINANCIAL SUMMARY
A. Cost of the Agreement to the City
The City will not incur a net cost resulting from the Agreement. The total
cost to the City resulting from this Agreement is $1,518,777. The AHA will purchase the
Property from the City for $1,830,000, resulting in 'a net gain to the City of $313,223.
The Agency costs resulting from this Agreement are listed below:
1. Land Acquisition Costs. 798 Moorpark Avenue was acquired for
$225,000, which includes $15,000 in relocation payments. 782
Moorpark Avenue was acquired for $471,000, which includes
$45,000 in relocation payments. 765 Walnut Street was acquired
for $419,000. 81 Charles Street was acquired for $338,777. The
total acquisition (including relocation) cost is $1,453,777.
160
2. Land Disposition Costs. N/A
3. Demolition Cost. The Property was partially cleared at a total cost
of $65,000. The remaining improvements on the Property will be
removed by the AHA at an estimated cost of$105,000.
4. Administration and Staff Costs. The Agency will incur minimal
administrative costs associated with the Agreement, including staff
time and legal costs for the negotiation and preparation of the
Agreement and other related documents, and ongoing staff costs
related to the management of the obligations of the parties under
the Agreement.
B. Estimated Value of the Property at the Highest and Best Use
The AHA solicited the services of Novogradac & Company LLP to
appraise the Property. Based upon current market conditions and the
highest and best use of the Property, Novogradac & Company LLP valued
the property at $1,830,000.
C. Estimated Value of the Site with the Conditions, Covenants, and
Development Costs Required by the DDA
The Agreement does not require special use, conditions, covenants or
costs that change the estimated value of the Property from the estimated
value at its highest and best use.
III. EXPLANATION OF WHY THE SALE OR LEASE WILL ASSIST IN
ELIMINATING BLIGHT AND ECONOMIC BENEFIT OF THE PROJECT
The Agreement will assist in the elimination of blight because the Property is
partially vacant and underutilized. The Project will result in the construction of 24
apartment and townhome units that will provide 19 very low and 5 low income units in
the neighborhood. The households that occupy these units will be charged an
affordable rent and will contribute to economic vitality of the City.
2 6/11/2015 1 6 1
ATTACHMENT I
[PROPOSED DISPOSITION AND DEVELOPMENT AGREEMENT IS ATTACHED TO
THE STAFF REPORT]
3 6/11/2015 1 6 2
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163
Exhibit F
RESOLUTION NO. 2015 -
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
MOORPARK, CALIFORNIA, APPROVING THE SALE OF
PROPERTY OWNED BY THE CITY OF MOORPARK
ACTING AS THE SUCCESSOR HOUSING AGENCY TO
THE REDEVELOPMENT AGENCY OF THE CITY OF
MOORPARK TO THE AREA HOUSING AUTHORITY OF
THE COUNTY OF VENTURA; FINDING SALE
CONSISTENT WITH CALIFORNIA HEALTH AND SAFETY
CODE SECTION 33433; APPROVING THE DISPOSITION
AND DEVELOPMENT AGREEMENT; AND PROVIDING
LOAN COMMITMENTS TO THE AREA HOUSING
AUTHORITY FOR THE PURCHASE OF THE PROPERTY
AND PERMANENT FINANCING
WHEREAS, the City Council of the City of Moorpark ("City"), adopted the
Redevelopment Plan for the Moorpark Redevelopment Project on July 5, 1989, by
Ordinance No. 110, in accordance with the California Health and Safety Code Section
33000 et seq.; and
WHEREAS, the Moorpark Redevelopment Agency ("Agency") purchased the
properties located at 798 Moorpark Avenue, 782 Moorpark Avenue, 81 Charles Street,
and 765 Walnut Street ("Property") with tax increment funds; and
WHEREAS, the City desires to sell the Property for the development of 24 very
low and low income affordable units ("Project") to the Area Housing Authority of the
County of Ventura ("Developer"); and
WHEREAS, the City has negotiated a Disposition and Development Agreement
with the Developer pertaining to the sale and development of the Property; and
WHEREAS, California Health and Safety Code Section 33433 ("Section 33433")
requires that the City Council approve, by resolution and after a public hearing, any sale
or lease of property which was acquired with tax increment funds; and
WHEREAS, Section 33433 requires that the City Council include the following
findings in the resolution approving the sale or lease of property purchased with tax
increment:
1. The sale of property will assist in the elimination of blight
in the Moorpark Redevelopment Project Area.
2. The sale of property is consistent with the goals and
objectives in the expired 2010-2014 Implementation Plan
164
Resolution No. 2015-
June 17, 2015
Page 2
for the Moorpark Redevelopment Project pursuant to
Section 33490 of the California Health and Safety Code.
3. The property is being sold at the fair market price at the
highest and best use in accordance with the Moorpark
Redevelopment Plan; and
WHEREAS, notice was published in the Ventura Star once a week for two weeks
prior to the public hearing; and
WHEREAS, on June 17, 2015, the City Council conducted a public hearing to
take public comment on the proposed sale of Agency owned property; and
WHEREAS, the proposed sale will assist with the elimination of blight in the
Moorpark Redevelopment Project Area; and
WHEREAS, the proposed sale is consistent with the expired 2010-2015
Implementation Plan for the Moorpark Redevelopment Project pursuant to Section
33490 of the California Health and Safety Code; and
WHEREAS, the Property has been appraised and the fair market price, at its
highest and best use in accordance with the Moorpark Redevelopment Plan, has been
established; and
WHEREAS, on June 17, 2015, the City Council reviewed the proposed sale and
determined that it is consistent with Section 33433; and
WHEREAS, the City desires to make a Purchase Loan to the Developer to be
utilized for the purchase of the Property. Payment on the Purchase Loan will be made
from residual receipts generated by the Project; and
WHEREAS, the City desires to make a Permanent Loan to the Developer to be
utilized to pay off the construction financing and serve as permanent financing for the
Project. Payment of the Permanent Loan will be made from residual receipts generated
by the Project.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK
DOES HEREBY RESOLVE AS FOLLOWS:
SECTION 1. The City Council approves the sale of Property to Developer.
165
Resolution No. 2015-
June 17, 2015
Page 3
SECTION 2. The City Council determines the proposed sale is consistent with
Section 33433 and the following findings are made:
1. The sale of the Property will assist in the elimination of blight
in the Moorpark Redevelopment Project Area.
2. The sale of Property is consistent with the goals and
objectives in the 2010-2015 expired Implementation Plan for
the Moorpark Redevelopment Project, pursuant to Section
33490 of the Health and Safety Code.
3. The Property is being sold at the fair market price at the
highest and best use in accordance with the Moorpark
Redevelopment Plan.
SECTION 3. The City Council approves the Disposition and Development
Agreement with the Developer pertaining to the sale and development of the
Property.
SECTION 4. The City Council approves a Purchase Loan to the Developer to be
utilized to purchase the Property in the amount of $1,830,000.00. Payment of the
Purchase Loan will be made from residual receipts generated by the Project.
SECTION 5. The City Council approves a Permanent Loan to the Developer to
be utilized to pay off the construction financing and serve as permanent financing for the
Project in the amount of $2,000,000.00. Payment of the Permanent Loan will be made
from residual receipts generated by the Project.
SECTION 6. The City Clerk shall certify to the adoption of this resolution and
shall cause a certified resolution to be filed in the book of original resolutions.
PASSED AND ADOPTED this 17th day of June, 2015.
Janice Parvin, Mayor
ATTEST:
Maureen Benson, City Clerk 166