HomeMy WebLinkAboutAGENDA REPORT 1991 0306 CC REG ITEM 11FMOORPARK ITEM •
City cAUFORNI,q
PAUL W. LAWRASON JR. of Meefl-Q
1991 PoPP" ,t STEVEN KUENY
Mayor 9i City Manager
BERNARDO M. PEREZ ACTION:
Mayor Pro Tern CHERYL J. KANE
� o City Attorney
SCOTT MONTGOMERY n D PATRICK RICHARDS, A.I.C.P.
Councilmember Director of
JOHN E. WOZNIAK o
4q 1" Community Development
Councilmember rE° ''` JOHN F. KNIPE
LILLIAN KELLERMAN
City Clerk
City Engineer
JOHN V. GILLESPIE
MEMORANDUM Chief of Police
RICHARD T. HARE_
To: The Honorable City Council City Treasurer
From: Patrick J. Richards, Director of Community Development
Date: March 1, 1991 (City Council Meeting of 3 -6 -91)
Subject: CONSIDER PROCESSING OF PROPOSED DEVELOPMENT AGREEMENT
WITH THE WESTLAND COMPANY REGARDING THE DEVELOPMENT OF A
285 -UNIT RESIDENTIAL PROJECT ON THE SOUTH SIDE OF LOS
ANGELES AVENUE BETWEEN LIBERTY BELL ROAD AND MAUREEN LANE
BACKGROUND
The Westland Development proposal is to provide 285 dwelling units,
of which 110 are single family detached and 175 are multi - family.
All dwellings are to be offered for sale as ownership units. Of
the 285 units proposed 10 of the detached units and 90 of the
attached units are set aside as affordable units.
Pursuant to the present zoning of R -1 -13, the maximum number of
allowed units on the property would be 118 dwelling units on the
existing 35.37 acre parcel.
This project consists of the following application requests; a
General Plan Amendment, two (2) Tentative Tract maps, three (3)
Residential Planned Developments and a Zone change. In conjunction
with the processing of the various entitlement requests by the
Westland Development Company, are agreements related to Affordable
Housing and a Development Agreement.
DISCUSSION
The consideration and approval of any Development Agreement is
regulated by Moorpark Ordinance No. 59 (see attachment). In
accordance with section 9.64.040 Preliminary Review; no application
for a Development Agreement shall be filed with the Director of
Community Development unless the City Council has decided, after a
preliminary review, to proceed with consideration of the proposal.
This section goes on to explain that the Director must transmit a
report and recommendation to the Council regarding whether or not
the City should further consider the proposal.
799 Moorpark Avenue Moorpark, California 93021
(805) 529 -6864
The Honorable City Council
March 1, 1991 (CC meeting of 3/6/91)
PROPOSED WESTLAND DEVELOPMENT AGREEMENT
Page -2-
Once the Council has determined that the application has merit for
further consideration, it is returned to the Director for
determining that the Development Agreement application is complete
pursuant to Government Code Section 65940 et.seq. The Director
then sets the matter to appear before the Planning Commission at a
public hearing.
The Commission is charged to give the Council a recommendation for
approval, approval with modification, or denial of the
agreement.Government Code Section 65940 et. Once the Council has
determined that the application has merit for further
consideration, it is returned to the Director for determining that
the Development Agreement application is complete pursuant to the
The Westland Company for the purpose of this proposed Development
Agreement is identified as Saranac Ventures, Inc. This agreement
contains a number of Articles which discuss various provisions of
responsibility for each of the two parties. Article III lists the
developers and City's responsibilities as follows:
Developer
a. Construction phasing - limits the development of only a
specific number of market rate units until a certain
number of the affordable units are constructed.
b. Construction will begin time specific.
Citv
a. Approve all entitlement requests to include General Plan
Amendment, Zone Change, two Tract maps and three Planned
Development Permits.
b. City grants the award of 191 development allotments.
C. City locks in all development fees as of the date of
approval.
d. City agrees to expedite processing of all permits, plan
reviews etc., after approval of the project.
The City Attorney's office has given this agreement a preliminary
review and only had a few suggested text changes.
Although Staff has not given the proposed Development Agreement an
in depth analysis; it is apparent that there is a weighted bias of
benefits for the developer.
The Honorable City Council
March 1, 1991 (CC meeting of 3/6/91)
PROPOSED WESTLAND DEVELOPMENT AGREEMENT
Page -3-
The purpose of this type of agreement is to provide a means by
which the City and developer can agree to proposed plans of
development. The agreement can assure the City that the project
will be developed in a manner agreed to. There is however, a need
for a balance of benefits in any such agreement. Typically such
agreements include:
a. Provisions for off -site public works improvements and
Citywide infrastructure. The phasing and possible
reimbursement of such improvements.
b. Payments to various City funds or projects over and above
typical development fees.
C. Dedications beyond those required by subdivisions.
d. Any other matters requested by the City and agreed to by
the developer.
Prior to sending this matter to a committee for further discussion
and recommendation; Council may wish to identify specific matters
needing further investigation and discussion. Limiting the major
typical issues should help speed future discussions regarding this
matter. Each party has much to gain in reaching a mutually
agreeable Development Agreement.
It should be noted that although the Westland Company has deposited
funds regarding the review of it's affordable housing component;
there are no specific funds on deposit towards any review of a
Development Agreement. There is a need for the City to cover all
it's processing costs. It is anticipated that -not only will City
Staff be involved with any future agreement consideration, but both
the City Engineer and City. Attorney's office will be involved. An
additional deposit will be required of the Westland Company prior
to any further consideration by the City.
Currently this.project is scheduled to appear before the Planning
Commission at their March 18, 1991 meeting. The Environmental
Impact Report (EIR) is undergoing it's required 45 day review
period (ends March 11, 1991). The Planning Commission has held one
public hearing regarding the EIR for this project. Inasmuch as
Ordinance No. 59 requires the Planning Commission to make their
recommendation (s) regarding the proposed Development Agreement;
there is some concern related to the fact that some physical
aspects of the project may change because of the conclusions
reached within the Development Agreement. Consideration should be
given to allow this project to proceed to the Planning Commission,
or hold based on the disposition of the final resolution of the
Development Agreement.
The Honorable City Council
March 1, 1991 (CC meeting of 3/6/91)
PROPOSED WESTLAND DEVELOPMENT AGREEMENT
Page -4-
Inasmuch as this project can assist the City in meeting some of
it's housing goals there is some merit for further consideration.
Also, the implementation of this project will involve various
public works improvements which will benefit from a coordinated
effort over time.
Staff RECOMMENDATION
1. That the City Council find that the draft Development
Agreement merits consideration for further review by the City.
2. at th City Council direct the Affordable Housin g Committee
\' o meet with the proponent for a Development Agreement and the
ouncil to consider the Committee's recommendation prior to
the City Council sending the matter to the Planning
Commission.
Require a deposit of an additional deposit of S5� 000 at this
time and additional funds as needed to allow cost recovery by
the City.
Attachment: Draft Development Agreement - SARANAC
prcc3.6
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Moorpark
799 Moorpark Avenue
Moorpark CA 93021
Attn: City Clerk
Record for the Benefit of
the City of Moorpark pursuant
to Government Code Section 6301
(Space above this line for Recorder's use)
RESIDENTIAL, DEVELOPMENT AGREEMENT BETWEEN ,
THE CITY OF MOORPARK AND SARANAC VENTURES, INC.
RECEIVED
AUG 1 0 199(
City Of Moorpi
THIS AGREEMENT ( "Agreement"
1990 b ) is executed this day of
municipal corporation, hereinafterereferredltoOasM�ORPARK
a
referred to ES' INC., a California co oration y" and
as Saranac" or "Developer". • hereinafter
per _
ARTICLE I
DEFINITIONS
Section i. For purposes of this Agreement, except
expressly provided or unless the context otherwise as °rerwise ree following terms shall be
defined as set forth hereinbeliow:S' the
Section 1.1 Affordable.
"Affordable Housin " The term "Affordable"
in the Affordable 9" Housing h shall have the same meaning r
City Council on Agreement which was approved ro same defined
1990, by Council Resolution
not Agreementlthough not incorporated herein,
is a material the Affordable Housing
Agreement as recited part of the consideration
in Section 3.1 hereof. for this
Section 1.2 Approval
the date upon which t Date. The term "Approval Date"
Agreement b he City Council approved this Development
forth in Section 11-14 Ordinance No. pment
14 below. and said date is set
Section 1,3 Citv. The term "CitYll Moorpark, a municipcorporation locatedmwith the City of
Ventura, State of California, Rhin the County of
1
;i �� /A ENT ,.
Section 1.4 Council. The term "Council" means the Moorpark
City Council.
Section 1.5 Development. The term " Development" means the
improvement of the Property for purposes of constructing the
structures, improvements and facilities comprising the Project
including, without limitation, clearing, demolition, grading, on
and off -site infrastructure and public facilities and
improvements relating to and in support of the Project.
Section 1.6 Development Agreement Act. The term
"Development Agreement Act" means Sections 65864 et secs. of the
California Government Code.
Section 1.7 Development Agreement Ordinance. The term
"Development Agreement Ordinance" means Ordinance No.
which became effective on establishing a
procedure for the consideration and approval of development
agreements within the City pursuant to the Development Agreement
Act.
Section 1.8 Development Fees. The term "Development Fees"
means all City fees, charges and monetary and in lieu thereof
exactions, assessments, dedications, mitigations, fees in
connection with areas of contribution, and conditions imposed in
connection with the review, approval and construction of the
Project as referred to in accordance with Section 3.2.4 hereof
and set forth in Exhibit "F" attached hereto.
Section 1.9 Effective Date. The term "Effective Date"
shall mean the date upon which this Agreement shall be deemed
entered into between the parties hereto and becomes effective
which shall be the thirtieth (30th) consecutive day after the
Approval Date (defined in Section 1.2) and the Effective Date is
set forth in Section 11.14 below.
Section 1.10\ Existing. Approvals. The term "Existing
Approvals!! -shall mean and collectively include all of the
following development approvals, certifications, entitlements,
Policies and findings applicable to the Property and Project that
have been duly approved or adopted, as the case may be, by the
City.[to be confirmed and completed].
(1)
adequate and
environmental
On
complete EIR No.
consequences of the Project.
1990 the City Council certified as
which considerRH th,,
(2) The City General Plan designates the Pro ert
which is the
Amendment approved by the Council
Ordinance No.
P y
result of a General Plan
on
1990 by
as
result of Council The
approvalyofsa Zoned
Zone Chan e
which is the
990, g by Ordinance No.
on 1
(4) On 1990, the City Council a
in accordance with the City Planning Commission recommendation
subject to conditions, approved,
Tentative Tract Map Nos. 4726 and 4738
(the "Tract Maps "). Attached hereto as Exhibits
are City Council Resolutions Nos. ��A -1�� and "A -2"
Tentative Tract Map Nos. 4726 and 4738andespecthic approve
with the conditions of approval for each of said mays together
Map Conditions,,). p (the Tract
Planned Development pe 1990, the City Council approved
)• Attached hereto as Exhibits and (the "PD
are City Council Resolution Nos. �rB -1, "B -2n and "B -3"
Planned Development Permit Nos. and
together wi. and aPProving
(the � the conditions of approval for each ofssaidively,
"PD Permit Conditions,,). Permits
Resolution No On 1990 the
awarded 191 residential tdevelop e by
allocations to the Market
accordance �,i' Rate-component of the Project
with the Residential Development Management System. A
copy Of Resolution-No.. Ject in
__ is attached hereto as Exhibit "C��,
Section 1.11 General Plan
mean the General Plan of the Cn. The term "General Plan"
y of Moorpark. shall
Section 1.12 Market
"Market Rate Unit" Rate. The term "Market ,�
shall mean the residential "Market, to or
are not subject to any City regulation or control with
Price, resale g units that
return of investment to owner, respect to
definition and are to be completel buyer/owner
er
Affordable Housing. y distin y Towner
guished from the
Section 1.13
include Owner's project. The term "Project" shall mean
caner s proposed residential development to consist
(a) one hundred and six and
single - family detached (106) dwelling units of Market Rate °f:
Affordable � residences; (b) ten
85 single zanily detached residences; dwelling units
( ) dwelling units of market ?? - ) of
ninety (90 ate attached townhomes; and eighty-five
condominiums,lWelling units of Affordable residential
and (d)
together with all. on and off -site improvements,
facilities, handscape, landscape ,Ind off -
connection t site mitigations in
herewith.
Section 1.14
certain real Property
Property The term 'property„ means that
which is set forth n ,'ned by Westland
reference In Exhibit �� the legal description of
incorporated attached hereto and b
herein. y this
3
Section 1. 15 Residential Development- Management System.
The term Residential Development Management System shall mean the
City's adopted procedures for the issuance of residential
building permits (commonly- referred to as Measure-F) adopted by-
the Moorpark City Council on by Ordinance No.
Section 1.16 Vested Elements. The term "Vested Elements"
shall be as defined in Section 3.2.1 below.
ARTICLE' II
RECITALS OF AUTHORITY AND INTENT
Section 2".
Section 2.1- State-Legislative Objectives. In order to
address state, regional and local housing needs and to facilitate
and encourage private enterprise to plan, finance and construct
residential development projects to house existing and projected
residents of the state, the State Legislature adopted the
Development -Agreement - -Act - wh-ich- °authorizes - -City to=enter into=
binding development agreements establishing certain development
rights in real property with persons having legal or equitable
interests in such property. Section 65864 of the Development
AgreementAct expressly provides in pertinent part:.
"The Legislature-finds and declares that:
(a) The lack of = certainty - -in the approval of development
projects can result in a -waste af-- resources, escalate
the cost of housing and other development to the
consumer, and discourage investment in and a commitment
to comprehensive planning which would make maximum
efficient,utilization- of resources at the least
economic cost to the public.
(b) Assurance to the applicant for a development project
that upon approval of the project, the applicant may
proceed with the project in accordance with existing
Policies, rules and regulations, and subject to
conditions of approval, will strengthen the public
planning process, encourage private participation in
comprehensive planning, and reduce the economic cost of
development."
Section 2.2 City Objectives and Findings. The City has
determined that the Project is a development for which a
development agreement is appropriate.
the Project Sectin ion
Development of
among other things, promote attainment of the goalsesetnforthlin
the Housing Element of the City,s General Plan.
this Development Agreement for the Project will assist fcity lin
meeting long term local and regional housing needs and provide a
greater number of Affordable Housing units than would otherwise
be available.
Section 2.2.2 General Plan Findin s.
notice of its intention to adopt the Development Agreement,
conducted public hearings thereon pursuant to Government Code
Section 65867 and the Development Agreement Ordinance and has
found that the provisions of this Development Agreement and its
Purposes are consistent with the Existing Approvals and the
goals, policies, general land use and standards specified in the
City's General Plan.
Section 2.2.3 Development Aq1r eement Act Findings.
Development of the Project in accordance with this Development
Agreement -will provide needed affordable housing,
uncertainty in planning for and securing orderly development of
the Project, insure attainment of the maximum efficient
utilization of resources within city
to its citizens and otherwise achieveathehgoalssandc Purpo urpoc cost
which the Development Agreement Act was adopted. ses for
and
Section
this4DevelopmenteAgr ePublic Interest. The terms
extensive review by the City staff, the PlanninVeCommission undergone
the City Council at publicly noticed meetings and Commission and
to be fair, just and reasonable and in conformancehwithbthe found
Existing Approvals and the General Plan and,
Council finds that the interests of the Cit further
Public health, safety the City
this Agreement.
y and welfare will be served lblzent and the
y entering into
Section 2.3 De�operrs Objectives.
legislative findings set forth In accordance with
Development Agreement Section 65864 of the the
reasonable greement Act, Developer is desirous of obtaining
the Project from from the City that Developer may develop
and all parts thereof, in accordance with the
Existing Approvals.
could not accept In the absence of this Agreement,
Existing A pt the risk and uncertainty of a change i°ethe °ber
build the Approvals, In
the Development Fees
Affordable Housing as well as the Market �Rate Housing.
For any number of foreseeable and unforeseeable reasons
including without limitation, r.ew rules or regulations a
by ordinance or by initiative or approved
such as legislation referenda governing development,
or increased developer regional planning regulation
City Councils toper fees or changes in perspective by new
could cause City to (i) halt the Project before
total buildout, (ii) reduce the density of the Project, (iii)
defer or delay completion of the Project, or (iv) change or add
infrastructure requirements. Any one of such circumstances would
likely, in the absence of this Agreement, cause the Project to
become financially and /or functionally infeasible. Consequently,
Developer cannot commit to or commence the project without this
Agreement.
ARTICLE III
AGREII4ENT AND ASSURANCES
Section 3.
Section 3.1 Agreement and Assurances on the Part of
Developer. With respect to the recitals of authority an4 intent
set forth in Article II above, and as partial consideration for
City entering into this Agreement, Developer agrees to execute
the Affordable Housing Agreement and use. its best efforts,
subject. to and in accordance with its own business judgment and
in doing. so shall: consider market conditions and other relevant
economic.factors - typical. - of such development -which effect -
Developer's decision to commence the. Project or to continue
construction. of the-Project in accordance with the terms and
conditions of this. Agreement and the Existing Approvals.
Section 3.1.1 _Construction Phasing; Housing Mix.
Owner agrees to maintain, during each construction phase, at
least the Market Rate\Affordable Housing mix ratios set forth
below in subparagraphs (a) and (b) so that Affordable units will
be built concurrent with Market Rate units as generally scheduled
below and thereby provide assurance to City that the Affordable
units will be built as covenanted when Market Rate units are
built.
(a) Single Familv Detached. At least one (1)
Affordable Housing unit for and along with every twelve (12)
Market Rate units.
(b) Attached Townhomes and Condominiums. At
least one (1) Affordable condominium unit for and along with
every one (1) Market Rate townhome unit until all Market Rate
units are constructed.
The construction phases shall be in the order shown on the
construction phasing plan attached hereto as Exhibit "E" and
incorporated herein by this reference. However, it shall be
within Developer's sole discretion when to commence construction
and sell units in each phase.
Section 3.2 Agreement and Assurances on the Part of City.
In consideration of Developer obligating itself to carry out the
covenants and conditions set forth in this Agreement, City agrees
that Developer shall be permitted to carry out and complete the
entire Project in accordance with the terms and conditions of
this Agreement and the Existing Approvals.
Section 3.2.1 Re lations Governin Develo went of the
Pr --may. The permitted use of the Property, the density and
intensity of use, maximum height, size and zoning ordinance
development standards of the Project, reservation and dedication
of land for public purposes, and the provision for public
improvements, and other terms and conditions of Development
applicable to the Property are set forth in:
(1) The General Plan of the City as of the
Effective Date;
(2) The __ zone applicable to the Property;
(3) The Existing Approvals defined in Section
1.10;
(4) Tentative Tract Nos. 4726 and 4738 and the
Tract Map Conditions, except as amended by
this Development Agreement;
(5) Planned Development Permit Nos.
and the PD Permit Conditions and
, except
amended by this Development Agreement; as
(6) Award of 191 development allotments for the
Market Rate Units and the exemption of the
Affordable Housing Units under the
Residential Development Management System;
and
(7) All Development Fees in effect as of the
Effective Date of this Agreement in
accordance with Section 3.2.4 hereinb
Exhibit—F" elow and
-
are hereby vested subject to the
Agreement provisions of this Development
(herein the "Vested Elements ").
Section 3.2.2 Development Timing
commence construction Developer shall
Initial of the Project before the expiration of the
Period (defined hereinbelow in Section 7.1)
Development Agreement. of this
If construction of the Project has not
been commenced before expiration of the Initial Period, this
Agreement shall automaticall
which construction o Y lapse. The time period within
the Existing A f the
Project Project must be inaugurated pursuant to
with the pprovals is waived and inapplicable in connection
ect during the term of this Development Agreement.
7
No future modification of the City's Municipal Code, or any
ordinance or regulation which limits the rate of development over
time shall be applicable to the Project.
Section 3.2.3 Rules, Regulations and Official
Policies.
(a) Development of the Project shall be subject
to all standards in the General Plan, the zoning ordinances, the
Moorpark Municipal Code, and other rules, regulations, ordinances
and official policies applicable to such Development on the
Approval Date of this Development Agreement except as otherwise
provided for herein. Except as otherwise provided in this
Section 3.2.3, to the extent any changes in the General Plan, the
zoning ordinances, the Moorpark Municipal Code and other rules,
ordinances, regulations and policies are in conflict with the
Vested Elements, the Vested Elements shall prevail and the
Project shall be vested under law and treated as though it were
completed and occupied pursuant to the terms and conditions of
this Development Agreement prior to the effective date of any
such change. To the extent any provisions of future General
Plans, zoning ordinances, the Moorpark Municipal Code or other
rules, ordinances, regulations or official policies, adopted on a
City -wide basis, are applicable to the Property or the Project
and are not in conflict with the Vested Elements such General
Plan, zoning ordinances, Moorpark Municipal Code or other rules,
ordinances, regulations or official policies shall be effective.
(b) City shall treat the Project as though it was
completed and occupied pursuant to the terms and conditions of
this Development Agreement assuring completion of the off -site
improvements contemplated by the PD Permits and Tract Maps
ap Ab e to the Property in the manner provided for by the
Tap Conditions and PD Permit Conditions and City agrees.
t - ill impose no further conditions or exactions upon the
P.- nor the formulation.of areas of benefit, areas of
C on, assessment districts, or impositions by means of.
pi wner or tenant association assessments or dues.
(c) If any governmental agency other than City
PQ 'law or regulation (. "Law ") after the Approval Date of
F =-
tt.;greement which prevents or precludes compliance with one or
nm OnE- of this Agreement then, immediately after
en of any new Law, the parties shall meet and confer in
g�th to determine the feasibility of any modification or
suspension based on the effect such modification or suspension
would have on the purposes and intent of this Agreement. In
addition, Developer shall have the right to challenge, at no cost
to the City, the new Law preventing compliance with the terms of
this Agreement and, in the event such challenge is successful,
this Agreement shall remain unmodified and in full force and
effect.
ON
(d) Except as otherwise provided in Section 3.2.4
in connection with Development Fees, all applications for City
approvals, permits and entitlements shall be subject to the
development and processing fees, exactions, assessments
which are in force and effect as of the Approval Date. and taxes
of the Cit (e)- Codes, ordinances, regulations and policies
y relating to construction (such
r which'have pe standards or permits mits been
as the Revised Uniform Building Code standards or
adopted by and are applicable to City as a whole) shall a
of the time of issuance of each applicable construction /building
Permit exce t to PPlY as
P the extent that such are in conflict with a
Vested Element. In the case of conflict, the new codes,
ordinances, regulations and policies shall a p
construction to the same extent as would be ap to new
case of substantial reconstruction of an existing structure.
purposes and '
(f) This Development Agreement effects
grants to Developer all development allotments and rights as are necessary to assure that the Project may be
completed, without Bela
statutes, ordinances, re, under City and other public agency
but not regulations,. rules and policies
limited to the County of Ventura 208 Water including
Control Plan, he
Quality
land use plan, air greenbelt agreements, regional
mar quality maintenance plan, an
moratoria or other action such as Y development
would or could delay r (such or referenda} that
some other such Plan, Prohibit implementation of the Project or
development thatpmay'beaoromaProgram governing land use or
or Project insofar as such Mattersocanabei applicable to the Property
compliance with applicable law, granted by the City in
cause all development rights which lmayabe Developer intend op to
Property in accordance with the Existing Approvals, to develop the
use entitlements applicable to the Project, other land
Agreement to be deemed vested in Develo Developer is Development
Development in to the grn ev P P execution of this
extent permitted by law..
Section 3.2.4 Development Feat
charged b (a) All Development-Fees in effect
y the City as of the Approval Date are set forth regularl.,'
Exhibit "E ", attached hereto and b forth in
herein. Should City Y this reference incorporated
Fees existing y�ad'ust th.e amount of an
F g as of the Approval Date as set yforth tinD Exhibit
ent
"F", Developer shall
Development Fees , regardless of the actual amount or
effect at required by the City regulation or ordinances
effect
Development f Payment, pay no more than the amount of
in
the cumulative required
increase in the construpctioonlcosteindexapublishedy
by the Engineering News Record
"Index ") Should - Los Angeles Record (the
the publishers <)f the Index discontinue the
9
publication or substantially alter the components of the Index or
publish same less frequently, Developer and City shall adopt a
substitute Index or procedure which most accurately reflects
construction costs.
(b) City shall not impose any new or additional
Development Fees or other monetary exactions, conditions,
assessments, private owner or tenant association assessments or
dues, charges, area of contribution fees, dedications or
mitigations upon the Project, including the establishment of new
areas of benefit or contribution or increases in fees for
existing areas of benefit or contribution, other than those
specifically set forth in Exhibit "F" attached and referenced in
Section 3.2.4(a).
Section_3.2.5 City's Good Faith in Processing. City
agrees that it will accept, process and review, in good faith,
all applications for design review (if any), zone clearance, plan
check, building permits or other entitlements for use of the
Propertyr in accordance with the terms and spirit of this
Development- Agreement.. The- City agrees that the scope of its
review of. remaining or. supplementary applications for development
approvals shall be confined to the issue of conformance to the
terms and provisions of this.Development Agreement, including the
Existing Approvals. City shall designate a member of the
Planning Division to coordinate and assure the expeditious
processing of the various applications, permits and reviews
associated with the Project, including any modification to the
Tract Map Conditions or PD Permit Conditions, and shall, at
Developer's expense, obtain outside contractual services as
necessary to- ensure- reasonably prompt processing of all
applications, plans and approvals.
ARTICLE IV
y _ DEFAULT, REMEDIES, TERMINATION
on. Remedies for Breach. City and Developer
-q -- �"� - - - - -- _
acedge that the purpose of this Agreement is to carry out
th -e i objectives and the Local, regional and statewide
by developing the Project. Cizv and Developer agree
thail_7�determine a sum of money ,jhich would adequately
COMPQ- party for choices they have made which would
fox-�t should the Project not be completed pursuant to and
contemplated by this Agreement is not possible and that damages
would not be an adequate remedy. Therefore, City and Developer
agree that in the event of a breach of this Agreement the only
remedies available to a party shall be: (1) specific
performance, (2) suits fo d 1
be
as
suits for mandamus or specialc o
wri~s, or(4)ncancellationlof, this
Agreement. Except for attorney's fees and associated costs as
set forth herein, monetary damages shall not be awarded to either
lu
party. All of these remedies shall,be cumulative and not
exclusive of one another and the exercise of any one or more of
these remedies shall not constitute a waiver or election with
respect to any other available remedy.
Section 4.2 Notice of Breach. Prior to the initiation of
any action for relief specified in Section 4.1 above because of
an alleged breach of this Agreement, the party claiming breach
shall, within thirty (30) calendar days of the inception of the
alleged breach, deliver to the other party a written "Notice of
Breach ". The Notice of Breach shall specify the reasons for the
allegation of breach with reasonable particularity and the
actions necessary to cure said breach. If, in the determination
of the so- called breaching party, such event does not constitute
a breach of this Agreement, the so- called breaching party shall
within thirty (30) days of receipt of the Notice of Breach,
deliver to the so- called non - breach -ng party a "Notice of Non -
Breach" which sets forth with reasonable particularity the -
reasons that a breach has not occurred. If the breaching party
commences actions to cure the breach within such thirty (30) day
period and diligently prosecutes such cure to completion the
breaching party shall not be deemed in default hereunder.
Failure to respond to the Notice of Breach within the thirty (30)
days shall be deemed admission of the breach.
Section 4.3 Arbitration. if the matter in connection with
any alleged breach is not resolved in writing within thirty (30)
days of receipt of the Notice of Non - Breach provided for in
Section 4.2, either party shall have the right to submit the
matter to arbitration. Whenever any dispute arises between the
parties hereto in connection with the Development Agreement and
either party gives written notice (the "Notice ") to the other
that such dispute shall be determined by arbitration, then within
thirty (30) days after the giving of the Notice, both parties
shall agree upon and hire one member of the panel. of Judicial
Arbitration and Mediation Services, Inc. ( "Judge"). The Judge
shall be a retired judge experienced with land use, zoning and
real estate development matters. As soon as reasonably possible,
but no later than forty (40) days after the Judge is selected,
the Judge shall neet with the ,parties at a location reasonably
acceptable to Developer, City and the Judge. The Judge shall
determine the natter within ten (1o) days after such meeting.
Each party shall pay one -half the casts and expenses of the
Judge.
If Judicial Arbitration and Mediation Services, Inc.
ceases to exist, and either party gives written notice to the
other that a dispute shall be determined by arbitration, then,
unless agreed otherwise in writing by the parties, all
arbitrations hereunder shall be governed by the then - current
rules of the American Arbitration Association. Any determination
by arbitration hereunder may be entered in any court having
11
jurisdiction. Within ten (10) days after delivery of such
notice, each party shall select an arbitrator with at least five
(5) years experience in land use, zoning and real estate
development matters and advise the other party of its selection
in writing. The two arbitrators so named shall meet promptly and
seek to reach a conclusion as to the matter to be determined, and
their decision, rendered in writing and delivered to the parties
hereto, shall be final and binding on the parties. If said
arbitrators shall fail to reach a decision within ten (10) days
after the appointment of the second arbitrator, said arbitrator
shall name a third arbitrator within the succeeding period of
five (5) days. Said three (3) arbitrators thereafter shall meet
promptly for consideration of the matter to be determined and the
decision of any two (2) of said arbitrators rendered in writing
and delivered to the parties hereto shall be final and binding
upon the parties.
If either party fails to appoint an arbitrator within
the prescribed time, and /or if either party fails to appoint an
arbitrator with the qualifications specified herein, and /or if
any two (2) arbitrators are unable to agree upon the appointment
of a third arbitrator within the prescribed time, then the
Superior Court of Ventura County may, upon the request of any
party, appoint such arbitrators, as the case may be, and the
arbitrators as a group shall have the same power and authority to
render a final and binding decision as where the appointments are
made pursuant to the provisions of the preceding paragraph. All
costs of any arbitration shall be borne by the party which does
not prevail in that arbitra- =ion. All determinations by
arbitration hereunder shall be binding upon Developer and City.
Section 4.4 Applicable Law /Attorney's Fees. This
Development Agreement shall be construed and enforced in
accordance with the laws of the State of California should any
legal action or arbitration be brought by either party because of
breach of this Development Agreement or to enforce any provision
of this Development Agreement. The prevailing party shall be
entitled to reasonable attorney's fees (including reasonable in-
house counsel fees of the City and Developer at
. private rates
prevailing in Ventura County) or arbitration costs and such other
costs as may be found by the court or arbitrator.
ARTICLE V
CHANGES AND AMENDMENTS
Section 5.
Section 5.1 City Requirements Apply. The procedures and
requirements of the City's Development Agreement Ordinance are
incorporated herein. In addition to those prcz:edures and
requirements, the following additional provisions shall apply.
12
Section 5.-1.1 Requirement for Writing. No
modification, amendment or other change to this Agreement or any
provision hereof shall be effective for any purpose unless
specifically set forth in writing which refers expressly to this
Agreement and is signed by a duly authorized representative of
both parties or successors.
Section 5.1.2 Annual. Review. The annual review
required by California Government Code Section 65865.1 shall be
conducted as provided herein. The City and Developer shall have
a reasonable opportunity to assert matters which either party
believes have not been undertaken in accordance with this
Agreement,. to explain the basis for such assertion and receive
from the-other party a justification of the other party's
Position with respect to such matter. T either party concludes
that the other party. has not complied in good faith with the
terms of this Agreement, then such party shall deliver a, Notice
of-Breach and the parties shall follow the procedure set
Article IV for resolving a breach. forth in
The annual review is subject to meeting the notice and
hearing - requirements of Section 65867 of the Development
Agreement Act.
Section 5.1.3 Permitted Delays. In the event of
changed conditions, changes in local, state or federal laws or
regulations, inclement weather, delays due to strikes
to obtain materials, civil commotion, fire, acts of God, orlother
circumstances which substantially interfere with carrying out the
Project, as the Project has been approved by way of the Existing
Approvals, or with the ability of either party to perform its
obligations under this Agreement the
Parties
good faith to modify such obligations ttoallowa the eprojectgton in
proceed as planned to the extent practicable.
Section 5.1.4 Develo went A reement Le islation. This
Agreement has been entered into in reliance upon the provision
Of the California statutes governing development agreements, s
(Title 7, Division 1, Cha ter 4
seq.), as those provisions existed 2�5, Section 65864, et.
Agreement. d at the Approval date of this
No amendment or addition _cf those provisions which
would materially effect the interpretation or enfor of
this agreement shall be applicable to this Agreementeunlessysuch
•amendment or addition is specifically required by the
Legislature, or is mandated by a court
permissive competent jurisdiction.
If such amendment or change is
mandatory) this Agreement shall. :art be ve (as`dpposed to by same the parties mutually agree in t,,r;ting '-o amend the Agreement to
permit such applicability. `
ARTICLE-VI,
EMINENT DOMAIN- POWERS
Section 6.
Section 6.1 Cooperation of City_ City agrees to cooperate
with Developer in implementing all of the - conditions of the
Existing Approvals and Vested - Elements, including but not limited
to, the potential exercise of its-eminent domain powers in
connection therewith provided that the City in its independent
exercise of judgment following all applicable procedure has made
the requisite findings properly supported by evidence that the
use of -such power is necessary. In- addition, City shall
cooperate with Developer in-its endeavors to obtain any other
permits and approvals as may be required from other governmental
or quasi - governmental agencies having jurisdiction over the
Project (such as public utilities or utility districts) and
shall, from time to time, at the request of Developer, attempt_
with due diligence-and-in good.-faith-to enter into binding
agreements with any -such entity =_in -order to assure the
availability -of such-permits and approvals, or services, at each
stage-of the development of the Project.
ARTICLE VII
DURATION OF AGREEMENT
Section 7.
7.1 Duration. The term of this Agreement shall commence
upon the first day following the Effective Date and shall remain
in effect for a term of five (5) years thereafter (the "Initial
Period "), unless said term is terminated, modified or extended by
circumstances set forth in this Agreement or by mutual consent of
the parties hereto. The term-of this Agreement will be extended
for thre�,i(3) additional years upon expiration of the Initial
Period if *Developer has commenced construction of the P roject and
is diligently prosecuting the work to complete the Project as
reasonably determined by the City Council (the "Extension
Period ")._. Following the expiration of the Initial Period or if
applicable, the Extension Period, this Agreement shall be deemed
terminated and of no further force and effect; provided, however,
such termination shall not automatically affect an right
from the Existing Approvals independent of this Agreement.arising
L�
ARTICLE VII
TRANSFERS AND ASSIGNMENTS
Section S.
8.1
8.1.1 Rights
and interests conve hts and Interests A urtenant.
benefit are yed and Provided herein for Deve'The errights
to sell, assigPuanantransfethe Property. Developer
interests and to delegate Y and all of P has the right
obligations gate any and all of its rights and
hereunder; provided, its duties and
interests may not be transferred however, that such
compliance w' r assigned except rights and
with the following conditions t: in strict
precedent:
or assigned a) Said rights and interests
geed only together with and as may be transferred
and assignment of the portions of the Property of
relate; and the transfer
Y to which they
Developer (b) Within fifteen (15) business
enters into an agreement for any day
transfer, Developer shall s after
Y such assignment or
assignment or transfer, notify City in writin
assignment or ' the Portions of the grog Of such
(for Purposes transfer is appurtenant; and the Property to which the
of notice hereunder) name
the correspondin ) of the transferee or address
within such transferrer of residential units or assignee;
and, which are gnee;
assume any of Developer's assignee or transferee intends
to , if the
COPY of the obligations under this A intends
assumption agreement to be signed b
Agreement a
y the parties.
in this Agreement attempt to sign or transfer an
8 except s strict y right or
shall be null and void and ri compliance interest
with this Section
no force and effect.
assi �• 8.1.2 Sub'ect to Terms gnment or transfer of A reement, g
Developer under this of any °t the
rights llowing any
the exercise Agreement ghts and interests of
use and in accordance with the
with the enjoyment of this Agreement foregoing,
were idestland force and of "feet as if the assignee shall continue
g or transferee
transfer 8'1.3 Release
of portions of Owner- pursuant to the
obligations or all of the pro assignment
from its under this Agreement prop and the rights and °r
obligations Developer shall be
such obligations this Agreement to the same extent written gate °ns are assumed b
request Y the assignee extent as
q b gnee or transferee.
separate written release of s City shall furnish to Upon
of �uCh obligations dui Developer a
y executed, which
15
release or partial release shall be provided by City promptly
upon the full satisfaction by Developer of the following
conditions:
Agreement; (a) Developer is not then in default under this
(b) City has been furnished with a duly executed
copy of the assumption agreement setting forth the obligations
assumed by the assignee or transferee under this Agreement.
8_2 Termination of A eement With Respect to Individual
Parcels Upon sale to Public. Notwithstanding
this Agreement to the contra an Y provisions of
to any lot which has been finally hsubdividednandhindividuallye as
leased or sold to the purchaser or user thereof. Thereupbn,
without the execution or recordation of any further document or
instrument, such lot shall be released from and no longer subject
to or burdened by the provisions of this Agreement; , to
however, that the benefits of this Agreement shall c provided
run as to any such lot until a ontinue building is constructed on such
lot at which time this Agreement shall terminate as to such lot.
ARTICLE IX
MORTGAGEE PROTECTION; CERTAIN RIGHTS OF CURE
Section 9.
Section 9.1 Mortgacee Protection.
superior and senior to any lien placed u onithegPromert shall be
Portion thereof after the date of recording this Developmentany
Agreement, including the lien of any deed of trust or mortgage
( "Mortgagee). Notwithstanding the foregoing,
shall defeat, render invalid, diminish or impair thealien- eofoanv
,Mortgage made in good faith and for value, but all of the terms-
and coneli,tions contained in this Agreement shall be binding
and effective against any person or entity, g p °n
trust beneficiary or mortgagee ("Mortgagee" including any deed of
to the Property, or any porn ) who acquires title
trustee's sale, deed -in -lieu enoreclosure,foreotherwise.
.1•iortgagee shall, however, be released from obligations hereunder, if liability or
any, upon transfer of the Property.
Section 9.2. Mortgagee not -
provisions n Section 9.1 above Obligated. Notwithstanding the
obligation or duty under this Agreementtttogconstructhorecomplete any
the construction of improvements, or to guarantee such
construction or completion; provided, however, that a Mortgagee
shall not be entitled to devote the Property to any uses or to
construct any improvements thereon other than those uses or
16
improvements provided for or authorized by this Agreement, or
otherwise in accordance with the Existing Approvals.
Section
Notice of
Mort Ugageetrequesting ae If City
Notice of Default given Developer hereunder and specifying the
address for service thereof, then City shall deliver to such
Mortgagee, concurrently with service thereon to Developer, any
notice given to Developer with respect to any claim by City that
Developer has committed an event of default, and if City makes
the determination of non - compliance hereunder, City shall
likewise serve notice of such non - compliance on such Mortgagee
concurrently with service thereon to Developer. Each Mortgagee
shall have the right during the same period available to
Developer to cure or remedy, or to commence to cure or remedy,
the event of default claimed or the areas of non - compliance s
forth in the City's notice. , et
ARTICLE x
THIRD -PARTY LITIGATION
Section lo.
10.1 General Plan Litigation.
determinedlthatlthistAgreement is entabove, City has
consist
Plan and that the General Plan meets all of the legal
with the General
requirements of State law. Developer has reviewed the General
Plan and-concurs with City's determination. The parties
acknowledge that:
legality, (a) in the future
y, validity and adequacv or
01%.
prevent the performance
the Property.
there may be challenges to the
the General Plan; and
successful, such challenges could delay or
Of this agreement and the
Development of
the 10.1.2
General Plan of. General Plan. If f
aslan or zny cart thereo_° s :e-eafte or any reason
determined provided above to no- t� r judicially
state or federal Constitutions =n compliance with the
Agreement shall remain ir. full�� laws or regulations, this
adoption or amendment of any General and effect and upon the
necessary in order an provision which is
laws or regulationsto comply with state or federal Constitutions,
together with t' to cure such inval,dity or inadequacy,
Approvals which y amendments to the Project or the Existing
y be necessary :n order to comply with such new
1;
or revised General Plan. The definition of General Plan stated
in Section 1.11 hereof shall- thereafter mean and refer to such
new or amended General Plan.
10.1.3 Suspension of Obligations. In the event that
Development of the Property is enjoined or prevented from
proceeding by any judicial order or determination in connection
with the determinations regarding the General Plan referred to
above, the time for performance -of the obligations of the parties
hereunder and the term of this Agreement shall be reasonably
extended to accommodate such.delay.
10.2 Opportunity to Intervene. Developer shall have. the
right to intervene in any---third party litigation against City and
City shall not object to such intervention by Developer. This
right to intervene is granted based upon City's acknowledgement
that Developer's interests will or can be adversely affected by
said litigation.
ARTICLE XI
GENERAL PROVISIONS
Section 11.
Section 11_1 Project is Private Undertaking. It is
specifically understood and agreed by the parties that the
Development contemplated by this Development Agreement is a
private development; that the City has no interest in or
responsibility for or duty to third persons concerning any of
said` improvements; that Developer shall have full power over and
exclusive control of the Property herein described subject only
to the limitations and obligations of the Developer under this
Development Agreement and, with respect to the Affordable
Housing, as prescribed in the Affordable Housing Agreement.
Developer hereby agrees to and shall hold City harmless from anv
iiabili�. for damage. or claims for damage for personal injury,
including death, as well as from claims for property damage which
may arise from the Developer's operations under this Agreement
excepting suits and action brcught by the Developer for default
of this Agreement or arising from the negligence of willful
" misconduct of the City.
Section 11.2 Notices Demands and Communications between
the Parties. Formal written notices, demands, correspondence and
communications between the City and the Developer shall be
sufficiently given if dispatched by registered or certified mail,
Postage pre -paid, return receipt requested to the offices of the
City and the Developer indicated below. Such written notices,
demands, correspondence and communications may be sent in the
same manner to such persons and addresses as either party may
from time -to -time designate by mail as provided in this Section.
i i3
City:
with Copy to:
Developer:
With Copy to:
Notices delivered by
Provided above shall
the date of deposit.
City Manager
City of Moorpark
799 Moorpark Ave.
Moorpark, CA 93021
Burke, Williams and Sorensen.
624 S. Grand Avenue, 11th Floor
Los Angeles, CA 90017
Attn: City Attorney: City of Moorpark
Saranac Ventures, Inc.
1694 Eastman, Suite B
Ventura, CA 93006
Attn: Mr. Glenn Hartman
Cohen, Alexander & Clayton
Attn: Allen F. Camp
One Boardwalk, Suite 102
Thousand Oaks, CA 91360
deposit in the United
be deemed to have been
States mail as
served 72 hours after
Section 11.3 No Joint Venture or
Developer agree that 110in Partnershi
Agreement or in any document executed in this City and
Development Agreement shall Development
in connection With this
Developer joint venturers Or Partners. construed as
partners. making City and
Section 11.4 Severabilit .
cif any 'Provision of this City and Developer agree +-
the reM— Tinder of this Development Agreement g tha`
and shall remain lopment :,greement shall held invalid,
permitted b in full force and effect not be affectec
Y law unless amended or to the maximum extent
the parties. modified by mutual consent of
Section 11.5
this Agreement Head — ings. Article and
be used are for convenience only Section h.- ,adings in
conditions interpreting or construing and are not intended
of this A g the terms to
Agreement. covenants or
Section 11.6
shall be V=nue• City and Developer in Ventura County for an agree that venue
for any arbitration. The venue for action filed
court shall any ac�lon filed in court or
District be the United Stated District Court in federal
°f California. for the Central
19
Section 11.7 Entire Agreement. This Agreement is executed
in four (4) duplicate originals, each of which is deemed to be an
original. This Agreement consists of pages and eight (8)
Exhibits which constitute the entire understanding and agreement
of the parties. The exhibits are as follows:
Exhibit "A -1" - Council Resolution No.
Exhibit "A -2" - Council Resolution No.
Exhibit "B -1" - Council Resolution No
No.
Exhibit "B -2" - Council Resolution No.
No.
Exhibit "B -3" - Council Resolution No.
No.
approving Tract 4726
approving Tract 4738
approving PD Permit
approving PD Permit
approving PD Permit
Exhibit "C" - Council Resolution No. awarding building
allocations
Exhibit "D" - Description of Property
Exhibit "E" - Construction phasing plan
Exhibit "F" - Development Fee Schedule
Upon completion of performance of the parties or revocation of
this Agreement, a written statement acknowledging such completion
or revocation, signed by the appropriate agents of the City and
Developer shall be recorded in the Official Records of Ventura
County, California.
Section 11.8 Estoppel Certificate. Either party may, at
pLny time, and from time to time, deliver written notice.to the
other pQ,_r ty requesting such party to certify in writing that, to
the knowledge of the certifying party, (i) this Agreement is in
full force and effect and a binding obligation of the parties,
(ii) this Agreement has not been amended or modified either
orally or in writing, and if so amended, identifying the
amendments, and (iii) the requesting party is not in
the performance of its obligations under this Agreement, or`ifnin
default, to describe therein the nature and amount of any such
defaults. The party receiving a request hereunder shall execute
and return such certificate or gi,.,e a written detailed response
explaining why it will not do ro within thirty (30) days
following receipt thereof. The Planning Director of City shall
have the right to execute any certificate requested by Developer
hereunder. City acknowledges that a certificate hereunder may be
relied upon by transferees and mortgagees.
20
Section 11.9 Time of Essence. Time is of the essence in
f
the performance o the provisions of this Agreement as to which
time is an element.
Section 11.10 Sincrular and Plural_ As used herein the
singular of any word includes the plural.
Section 11.11 Waive r_ Failure b
the strict performance of an of Y a Party to insist upon
Y the provisions of this Agreement
by the other party or the failure by
rights upon the default of the other oartyty to exercise its
a waiver of such party's right to insist
thereafter. and shall
compliance by the other party with the terms of this Agreement
Section 11.12 No Third Party Beneficiaries. oply
Parties to this Agreement are Developer and City. he ear
third party beneficiaries and this Agreement isy not Tintended no
shall not be construed to benefit or be enforceable b
person or entity and
y whatsoever. Y any other
Section 11.13 Successors and Assi s.
Provisions of Article "III the terms and conditionstofo_
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and assigns.
Section 11.14 Execution_ This Agreement was approved by
the City Council by way of Ordinance No.
adopted on , which was finally
effective thirty (30 days 1990 (the "Approval Date"
was duly executed b ) y thereafter (the "Effective) Date"), and
"Execution Date"). the parties as of ), and
. _ 1990 (tt:e
0%%.
21
r
�4.
DEVELOPER:
CITY:
SARANAC VENTURES, INC., a
California Corporation
By:
Glenn Hartman, its
President
CITY OF MOORPARK
By:
ATTESTATION:
Mayor
By:
City Clerk
APPROVED AS TO FORM:
22
By:
Cheryl- Kane, City Attorney