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HomeMy WebLinkAboutAGENDA REPORT 2015 1216 CCSA REG ITEM 10G ITEM 10.G. CITY OF MOORPARK.CALIFORNIA City Council Meeting of IA-lb �-A646- ACT - _ / Q• MOORPARK CITY COUNCIL "`� doj%� • !�� AGENDA REPORT BY: y1-1 TO: Honorable City Council FROM: Steven Kueny, City Manager it BY: Jessica Sandifer, Senior Management Analys DATE: December 9, 2015 (CC Meeting of December 16, 2015) SUBJECT: Consider Affordable Housing Agreement Between City of Moorpark and Canyon Crest Ranch Partners-Moorpark, LLC (Tract 5437) for Two Single Family Homes to be Sold to Income Qualified Buyers BACKGROUND On June 21, 2006, the City entered into a Development Agreement (DA) with Canyon Crest Ranch Partners-Moorpark, LLC (Canyon Crest) outlining the process by which Canyon Crest would develop Tract 5437 for residential home sites. On May 17, 2006, the City Council commenced a duly noticed public hearing on the DA and at the conclusion of the hearing on June 7, 2006, approved the DA by Ordinance No. 336 ("the Enabling Ordinance"). DISCUSSION Section 6.9 of the DA requires the preparation and execution of an Affordable Housing Agreement (AHA) specifying key information pertaining to the affordable units. This AHA is to be approved by the City Council prior to the recordation of the final tract map for the project. An AHA has been prepared which addresses the items in Section 6.9 of the DA and includes that the parties agree that the two (2) affordable units are to be sold to buyers who meet the criteria for affordable housing as follows: one (1) four (4) bedroom and two (2) bath single detached unit with a minimum of 1,200 square feet to be sold to a qualified buyer who meets the criteria for low income (80% or less of median income), and one (1) four (4) bedroom and two (2) bath single detached unit with a minimum of 1,200 square feet to be sold to a qualified buyer who meets the criteria for very-low income (50% or less of median income). The two (2) units referenced above are collectively referred to as the "affordable units". The AHA also includes provisions for the City, at its sole option, to purchase any of the 220 Honorable City Council December 16, 2015 Page 2 affordable units, in the event that a qualified low income buyer has not been identified by the City by the time a Notice of Completion is approved for either of the affordable units. The City would then resell any affordable units purchased from the Developer to qualified low income households, through the City's First Time Home Buyer Program, and will cause long term covenants to be recorded against the properties to ensure their affordability to low-income households for perpetuity. The AHA also includes a provision that allows the Developer to "buy-out" of providing the two affordable units upon payment of a specified "buy-out" fee. If the Developer elected to use this provision, similar to other in-lieu fees received by the City, the "buy- out" fee would be deposited in the City's affordable housing fund for provision of future affordable units. Various other provisions are incorporated into the AHA such as payment of specified fees, schedule for providing the units, low income affordable sales price calculations, and very-low income affordable sales price calculations. FISCAL IMPACT There is no fiscal impact for the preparation of the AHA. Section 6.9 of the Development Agreement requires Canyon Crest to pay for the City's direct costs for preparation and review of the AHA up to $10,000. The City will also be receiving an Affordable Housing fee in exchange for not having to provide an additional unit to fulfill a portion of the Affordable Housing requirement. This Affordable Housing fee revenue will total approximately $54,103 (at the current indexing) which will be deposited into the City's Affordable Housing Fund. STAFF RECOMMENDATION Approve the Affordable Housing Agreement, subject to final language approval by the City Manager and City Attorney; authorize the Mayor to execute said Affordable Housing Agreement; and direct the City Clerk to cause said Affordable Housing Agreement to be recorded in the Office of the Recorder of the County of Ventura. Attachment I: Affordable Housing Agreement 221 ATTACHMENT 1 OFFICIAL BUSINESS Document entitled to free recording per Government Code Sections 6103 and 27383 Recording Requested By: THE CITY OF MOORPARK 799 Moorpark Avenue Moorpark, Califomia 93021 Attention: City Clerk SPACE ABOVE THIS LINE FOR RECORDER'S USE AFFORDABLE HOUSING AGREEMENT THIS AFFORDABLE HOUSING AGREEMENT (the "Agreement") is dated as of , 2015 and is entered into by and between CANYON CREST RANCH PARTNERS-MOORPARK, LLC, a California limited liability corporation ("Developer"), and the CITY OF MOORPARK ("City"). RECITALS WHEREAS, Developer and City entered into a Development Agreement for Tract 5437 on June 21, 2006 ("Development Agreement"). Section 6.9 of said Development Agreement obligates Developer to provide one (1) dwelling unit to be sold to a buyer who meets the criteria of low income (80% of median income); and one (1) dwelling unit to be sold to a buyer who meets the criteria of very low income (50% of median income) and to provide an Affordable Housing fee instead of constructing additional units to fulfill a portion of the Affordable Housing requirement; and WHEREAS, Section 6.9 of the Development Agreement also provides that prior to recordation of the first final Tract Map for Tract 5437, the City Council must approve an Affordable Housing Implementation and Resale Restriction Plan, and that such plan shall be incorporated into an Affordable Housing Agreement that is consistent with the Development Agreement, in order to provide for the sale of the two (2) dwelling units to qualified low income and very low income buyers; and WHEREAS, Developer has received City approval to develop 21 single family detached units on approximately 42.4 acres, consistent with the Development Agreement and Vesting Tentative Tract Map No. 5437 (collectively, the "Project"); and WHEREAS, the Moorpark City Council adopted Resolution No. 2006-2462 on May 17, 2006, approving Residential Planned Development (RPD) Permit No. 2004-05. Exhibit A of said Resolution approved Special and Standard Conditions of Approval for RPD 2004-05 (Conditions of Approval) and Vesting Tentative Tract No. 5437 for the construction of 21 detached units. -1- 12853-0001\1862758v2.doc 222 NOW, THEREFORE, the Developer and the City agree as follows: SECTION 1. General Terms. 1.1 The parties agree that this Affordable Housing Agreement fulfills the requirements of the referenced Development Agreement for Tract 5437 for both an Affordable Housing Implementation and Resale Restriction Plan and an Affordable Housing Agreement. 1.2 The parties agree that, prior to the final inspection and approval by the City of the 15th unit of the Project, the Developer shall cause two (2) affordable units to be constructed or acquired and sold as follows: (i) one (1) four (4) bedroom and two bath single family detached unit with a minimum of 1,200 square feet to be sold to a qualified buyer who meets the criteria for low income (80% or less of any median income), and (ii) one (1) four (4) bedroom and two bath single detached unit with a minimum of 1,200 square feet shall be sold to a qualified buyer who meets the criteria for very low income (50% or less of any median income). The two (2) units referenced above are collectively referred to as the "affordable units" or "affordable housing units". The affordable units shall, at a minimum, include a standard two-car garage with a roll- up door and a minimum driveway length of eighteen (18) feet measured from the back of the sidewalk, meet minimum setback requirements of the City's RPD zone, include concrete roof tiles, and other amenities typically found in moderate priced housing in the City (e.g. air conditioning/central heating, washer/dryer hookups, garbage disposal, built in dishwasher, concrete driveway, and automatic garage door opener). All affordable units shall be provided with clothes washing and drying machines and window coverings to the satisfaction of the Director of Community Development. Duplex units in Tracts 3841, 3070-2, 3070-3, 3070-4, 4170, 5133, and 5425 are considered to be single family detached units for the purpose of this Section 1.2. 1.3 If the City, at its sole discretion, provides written approval that the foregoing obligation may, in whole or in part, be met by providing attached for-sale units, then such attached for-sale units may in whole or part, be provided, but must be provided at the ratio of one and one-half (1.5) attached for sale units for each single family detached unit. If such substitution results in any fraction of a unit, then the requirement shall be rounded up to the next higher whole number. For example, the requirement of 2 single family detached units is met by three (3) attached for-sale units, but two (2) attached for-sale units must be provided in lieu of a single family detached unit if only one (1) single family detached unit is provided. Each of the substituted units must be sold to a buyer at the income level of the unit(s) for which they are being substituted. The attached for-sale units must provide the same number of bedrooms and bathrooms and contain all of the same amenities for a single family detached unit as described above, except the minimum driveway length. 1.4 Prior to acquiring any housing unit to meet the obligations of this Agreement, Developer must first obtain the written approval of City Manager or his/her authorized representative that the unit meets the requirements of the Development Agreement and this Agreement. -2- 12853-0001\1862758v2 doc 223 1.5 Developer may purchase the required affordable units in order to resell them in accordance with this Agreement. Developer may also construct (rather than purchase) the affordable units so long as Developer meets all requirements of this Agreement and the proposed project and property on which the units are proposed to be constructed conform to the City's General Plan, Zoning Codes, and the Moorpark Municipal Code. However, nothing in this Agreement requires City to consider a General Plan Land Use Amendment, Zone Change, or any other land use entitlement to allow or permit said proposed construction. 1.6 Developer agrees that City (and not Developer) shall have the right to market the affordable units, identify and qualify eligible buyers for these units, and oversee the escrow process to sell the affordable units, require buyers to comply with its First Time Home Buyer Affordable Housing Program with respect to the units, and that City shall provide the Deed of Trust, Promissory Note, Resale/Refinance Restriction Agreement, Option to Purchase Property and Notice of Affordability Restrictions (collectively "Affordability Documents") and all other necessary contracts and related documents to ensure that the affordable units remain occupied by qualified households. Developer further agrees that the difference between the market value and the Affordable Sales Price (as described in Sections 3.5 and 3.6 below, as applicable) paid by a qualified buyer shall be the amount of the promissory note in favor of City secured by the Deed of Trust. 1.7 All of the affordable units shall meet the criteria of all applicable State laws to qualify as newly affordable to low income persons to satisfy a portion of the City's Regional Housing Needs Allocation (RHNA) obligation. None of the affordable units required by this Agreement shall duplicate or substitute for the affordable housing requirement of any other developer or development project. 1.8 Developer further agrees that it has the obligation to provide the required number of housing units as specified in this Agreement regardless of the cost to acquire or construct said housing units. Developer further agrees that City has no obligation to use eminent domain proceedings to acquire any of the required housing units. 1.9 Any affordable housing units provided under this Agreement that are purchased by Developer and received a final inspection prior to January 1, 2007, must conform to the Uniform Building Code in effect as of July 1, 1983. Developer shall pay at its sole cost and expense for a City selected contractor to perform a home inspection and/or occupancy inspection by the City Building Official, and Developer, at its sole cost and expense, shall make any needed corrections to conform to inspection reports and current building codes. At Developer's sole cost and expense, the roof shall be inspected by a City selected contractor and, if necessary as determined by City at it sole discretion, repaired or replaced by a City selected licensed roofing contractor and certified to have no less than a 20-year life. Developer, at its sole cost and expense, shall purchase a standard home warranty policy for a three-year period commencing on the date the unit is first sold to a qualified low or very-low income household and shall include but not be limited to coverage of heating and air conditioning systems, automatic garage door opener, and all built-in appliances and include a -3- I2853-000I\1862758v2.doc 224 deductible/service call amount of no more than One Hundred Dollars ($100.00) per service request. For these units, City may approve a composition shingle roof in lieu of a concrete tile roof if all other provisions of this Agreement are met. In no event shall a wood shake or shingle roof be approved. SECTION 2. Affordable Housing Fee. 2.1. Developer shall pay to the City a fee (the "Affordable Housing Fee"), which shall be used by the City at its sole discretion for the purpose of providing affordable housing programs. The Affordable Housing Fee shall be in the amount of fifty-four thousand one hundred three dollars ($54,103.00) and shall be paid prior to the occupancy of the 15th residential unit in Tract 5437. The Fee shall be adjusted annually commencing on December 1, 2016, by any increase in the median price of single-family detached for-sale housing in Ventura County as most recently published by Core Logic (Housing Index) for the month of July. In the event there is a decrease in the Housing Index for any annual indexing, the Affordable Housing Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. In the event the Housing Index referred to above in this subsection is discontinued or revised, such successor index with which it is replaced, shall be used in order to obtain substantially the same result as would otherwise have been obtained if the Housing Index had not been discontinued. SECTION 3. Terms of Sale. 3.1 Developer shall cause all liens on an affordable unit (except liens for property taxes and assessments not yet due) to be removed/released before the close of escrow for that affordable unit. 3.2 Developer agrees that affiliates of Developer may not be used to provide lending, escrow or other services in connection with sales of the affordable units. 3.3 When a qualified low income or very-low income buyer is identified by City, Developer shall open escrow for the sale of said unit as provided for in this Agreement, and shall enter escrow directly with the buyer identified by City, and proceed to closing of said sale. If a qualified low income or very-low income buyer has not been identified at the time Developer receives its final inspection approval for an affordable unit, City, at its sole option, may agree to purchase the affordable unit required to be provided by Developer for the amount as provided for in this Agreement. In either case, Developer and City agree to use reasonable efforts to complete the close of escrow within sixty (60) days of the final inspection approval of an affordable unit. 3.4 The Affordable Sales Price for the very low-income buyers shall not exceed affordable housing cost, adjusted for family size appropriate for the unit, as defined in Section 50052.5 (b) (2) of California Health and Safety Code. As provided in Section 50052.5 (h) of the California Health and Safety Code, "adjusted for family size appropriate to the unit" means five (5) persons in the case of a four-bedroom unit. -4- 12853-0001\1862758v2.doc 225 For a very- low income household of five (5), the current monthly "affordable housing cost" (based on 2015 Income Limits) would be 30% times 50% of $96,450, the current median income for a household of five (5) in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the California Code of Regulations shown below. (See Section 50052.5 (c) of the Health and Safety Code.) The Affordable Sales Price for a 4-bedroom unit for a very-low income household of five (5) would be $130,000 under current market conditions, based upon the following assumptions: Very Low Income Buyer 4 bedroom 2 bath unit(Household of Five) Item Detail Amount Affordable Sales Price $130,000 Down Payment 3% of Affordable Sales Price $3,900 Loan Amount Affordable Sales Price less $126,100 down payment Interest Rate 4.50% Property Tax 1.25% of Affordable Sales $135 /mo Price LMD $46 /mo HOA $100 /mo Fire Insurance $60 /mo Maintenance $20 /mo Utilities $214 /mo The assumptions associated with the above purchase price figures for a 4-bedroom unit for a very low income household include a 3% down payment based on the Affordable Sales Price, mortgage interest rate of 4.5%, no mortgage insurance, property tax rate of 1.25%, based on Affordable Sales Price, landscape maintenance district of $46, HOA dues of$100.00 per month, fire insurance of $60.00 per month, maintenance costs of $20.00 per month, and utilities of$214.00 per month. 3.5 The Affordable Sales Price for the low-income buyers shall not exceed affordable housing cost, adjusted for family size appropriate for the unit, as defined in Section 50052.5 (b) (3) of California Health and Safety Code. As provided in Section 50052.5 (h) of the California Health and Safety Code, "adjusted for family size appropriate to the unit" means five (5) persons in the case of a four-bedroom unit. For a low income household of five (5), the current monthly "affordable housing cost" (based on 2015 Income Limits) would be 30% times 70% of $96,450, the current median income for a household of five (5) in Ventura County, divided by 12. This monthly amount includes the components identified in Section 6920 of Title 25 of the -5- 12853-0001\1862758v2-doc 226 California Code of Regulations shown below. (See Section 50052.5 (c) of the Health and Safety Code.) The Affordable Sales Price for a 4-bedroom unit for a low income household of five (5) would be $210,000 under current market conditions, based upon the following assumptions: Low Income Buyer 4 bedroom 2 bath unit(Household of Five) Item Detail Amount Affordable Sales Price $210,000 Down Payment 3% of Affordable Sales Price $6,300 Loan Amount Affordable Sales Price less $203,700 down payment Interest Rate 4.50% Property Tax 1.25% of Affordable Sales $219 /mo Price LMD $46 Imo HOA $100 Imo Fire Insurance $60 /mo Maintenance $20 /mo Utilities $214 /mo The assumptions associated with the above purchase price figures for a 4-bedroom unit for a low income household include a 3% down payment based on the Affordable Sales Price, mortgage interest rate of 4.5%, no mortgage insurance, property tax rate of 1.25%, based on Affordable Sales Price, landscape maintenance district of $46, HOA dues of $100.00 per month, fire insurance of $25.00 per month, maintenance costs of $20.00 per month, and utilities of$214.00 per month. 3.6 Upon the close of escrow for an affordable unit, Developer agrees to deposit with City through escrow at closing $120.00 for each dollar or portion thereof of the monthly HOA fees for the affordable unit that are in excess of $100.00, using the highest HOA fee amount documented (in any phase) in the approved Department of Real Estate (DRE) report for the project the affordable unit is located. These funds shall be used to assist with future HOA fees for each affordable unit. This is a one-time payment to assist qualified low income buyers (whether said buyers or City initially purchases the affordable unit from the developer). 3.7 Developer and City acknowledge that changes in market conditions may result in changes to the Affordable Sales Price, market value, down payment amounts, mortgage interest rates, and other factors for both very-low and low income buyers. Furthermore, if "affordable housing cost", as defined in Section 50052.5 of California Health and Safety Code, should change in the future, the above guidelines will be -6- 12853-0001\1862758v2.doc 227 modified accordingly in order to obtain the same result as would otherwise have been obtained if the definition had not been changed. 3.8 Pursuant to Section 6.9 of the Development Agreement, and in addition to its closing costs as the seller, Developer shall pay all of buyers' closing costs, up to a maximum of Six Thousand Nine Hundred Six ($6,906) per unit. On March 1 of each calendar year, the maximum $6,906.00 per unit to be paid for closing costs shall be increased annually by any percentage increase in the Consumer Price Index (CPI) for All Urban Consumers for Los Angeles/Orange/Riverside metropolitan area during the prior year using the month of December over the prior month of December. If there is a decrease in the CPI for any annual indexing, the amount due shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. The referenced Developer funded closing costs shall be for the benefit of qualified buyers (or City in lieu of qualified buyers as determined by City in its sole discretion for one or more of the required units) in their acquisition of a unit from Developer. The Developer's payment of Buyer's escrow costs shall not exceed the then applicable maximum amount per unit regardless of the number of escrows that may be opened on a specific unit prior to the closing of the initial sale to a qualified buyer or City in lieu of a qualified buyer. 3.9 In addition to the aforementioned closing costs, as part of the sale of each affordable housing unit, Developer agrees to pay City two percent (2%) of the then applicable Affordable Sales Price (Processing Fee) to pay City for City staff time, contract services, out-of-pocket costs, and related costs for the services necessary to qualify eligible buyers, modify the Affordability Documents, if needed, and process the purchase transactions. Developer further agrees that this Processing Fee shall be paid to City at Developer's initial sale of each affordable housing unit, whether it is sold to a qualified buyer selected by City, or to City in lieu of a qualified buyer, as determined by City in its sole discretion. SECTION 4. Quality of Construction. If the affordable units are constructed by Developer, either directly or by an affiliate or contractor of Developer or newly constructed (never previously occupied) by a third party and purchased by Developer, then the quality of materials and construction techniques of the affordable units shall be similar to other moderate priced single-family unitsconstructed in Moorpark and be subject to the Development Agreement and all Conditions of Approval and shall meet all Building Codes. This includes but is not limited to all appliances, hardware, doors, windows and plumbing fixtures. SECTION 5. Other Amenities: Home Warranties. If the affordable units are constructed by Developer, either directly or by an affiliate or contractor of Developer or newly constructed (never previously occupied) by a third party and purchased by Developer, then Developer agrees to provide the same amenities and home warranties for the affordable units as the amenities and home warranties provided for the units in Tract 5437/RPD 2004-04 for the maximum time required by State law, but in no event less than ten (10) years. Developer agrees that all such warranties shall inure to the -7- 12853-000111862758v2doc 228 benefit of and be enforceable by the ultimate occupants of the affordable units, and that all warranties by Developer, subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The qualified buyer (or if the Buyer is City, then City in lieu of a qualified buyer at its sole discretion) shall have final walk-through approval of condition of unit before close of sale. Developer to provide finish options for cabinets, floor coverings, and countertops to City for approval by the Director of Community Development. Finish selections shall be made within ten (10) days of Developer's request for selection. SECTION 6. Affordable Housing Buy Out Upon Developer's written request, City may, at its sole discretion, allow Developer to play an in-lieu fee (the "Buy Out Fee") instead of providing either one or both of the affordable units as otherwise required by the Development Agreement and this Agreement. Buy Out fee is in addition to any other fees required by this Agreement. The fee shall be calculated as the Fair Market Value (FMV) of the unit less the Affordable Sales Price, calculated as defined in Section 3.4 and 3.5, plus seven thousand dollars ($7,000) plus fifteen percent (15%). The current Buy Out Fee for a very-low income unit is $410,550, calculated as follows: Fair Market Value $480,000.00 Affordable Sales Price $ 130,000.00 $ 350,000.00 $ 7,000.00 $ 357,000.00 15%fee $ 53,550.00 Very-low Income Buyout $ 410,550.00 The current Buy Out Fee for a low income unit is $318,550, calculated as follows: Fair Market Value $480,000.00 Affordable Sales Price $210,000.00 $ 270,000.00 $ 7,000.00 $297,000.00 15% administrative fee $ 41,550.00 Low Income Buyout $318,550.00 The Buy Out Fee will never decrease below the amounts set forth above. The Buy Out Fee for each unit, shall be adjusted annually commencing one (1) year after the date of this Agreement by any increase in the median price of single-family detached for-sale housing in Ventura County as most recently published by Core Logic (Housing Index) for the month of July. In the event there is a decrease in the Housing -8- 12853-0001\1862758v2.doc 229 Index for any annual indexing, the Buy Out Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. In the event the Housing Index referred to above in this subsection is discontinued or revised, such successor index with which it is replaced, shall be used in order to obtain substantially the same result as would otherwise have been obtained if the Housing Index had not been discontinued. SECTION 7. Defense and Indemnity. Developer agrees to indemnify, hold harmless and defend at its sole expense, with counsel reasonably acceptable to City, any action brought against it or City by a purchaser of an affordable unit (and any related liabilities, losses, damages, costs and expenses) for any alleged construction defects or related problems to approve, extend or renew any permit, or under CEQA, any subsequent permits to implement/construct Tract 5437/RPD 2004-05, or this Agreement. Developer further agrees to reimburse City for any court costs and/or attorneys' fees which City may be required by the court to pay as a result of any such action(s). City may, at its sole discretion, participate in the defense of any such action at City's cost, but such participation shall not relieve Developer of its obligation under this Section. SECTION 8. Waiver. Developer hereby covenants not to bring any action against City to (a) attack, review, set aside, void, or otherwise annul this Agreement, in whole or in part, or (b) recover any compensation or obtain any relief for any injury, damage, loss, or deprivation of any right alleged to have been sustained as a result of City's action on any matter related to this Agreement. SECTION 9. Defaults and Remedies. Each of the following shall constitute an "Event of Default" by the Developer: 9.1.1 Failure by Developer to duly perform, comply with and observe any of the conditions, terms, or covenants of Tract 5437 or RPD No. 2004-05, or this Agreement, or the Development Agreement, or any other Conditions of Approval, if such failure remains uncured ten (10) days after written notice of such failure from the City to the Developer in the manner provided herein or, with respect to a default that cannot be cured within ten (10) days, if the Developer fails to commence such cure within such ten (10) day period or thereafter fails to diligently and continuously proceed with such cure to completion. 9.1.2 Any representation or warranty contained in this Agreement or in any certificate or report submitted to City by Developer proves to have been incorrect in any material respect when made. 9.1.3 A court having jurisdiction shall have made or rendered a decree or order (a) adjudging Developer to be bankrupt or insolvent; (b) approving as properly filed a petition seeking reorganization of Developer or seeking any arrangement on behalf of Developer under the bankruptcy law or any other applicable debtor's relief law or statute of the United States or of any state of other jurisdiction; (c) appointing a -9- 12853-0001\1862758v2.doc 230 receiver, trustee, liquidator, or assignee of Developer in bankruptcy or insolvency or for any of its properties; or (d) directing the winding up or liquidation of Developer, 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. 9.1.4 The Developer 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 Developer is diligently workingto obtain a return or release of the property and the City's interests hereunder are not imminently threatened in City's reasonable business judgment, then City shall not declare a default under this subsection. 9.1.5 The Developer shall have voluntarily suspended its business or dissolved. 9.1.6 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 on which the Project is to be constructed, which loan is secured by a deed of trust or other instrument of record. 9.2 Liens. Developer shall pay and promptly discharge when due, at Developer's cost and expense, all liens, encumbrances and charges upon the Project or the underlying 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), 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. Developer 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, Developer 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 Developer 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 Developer 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 -10- 12853-0001\1862758v2.doc 231 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. Developer shall, immediately upon demand therefore 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. To the extent not paid, all costs and expenses paid by the City shall be a lien on the Property pursuant to Civil Code Section 2881. 9.3 Costs of Enforcement. If any Event of Default occurs, City may employ an attorney or attorneys to protect its rights hereunder. Subject to California Civil Code Section 1717, Developer promises to pay to City, 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 City in connection with the enforcement of the obligations secured hereby, whether or not such enforcement includes the filing of a lawsuit. 9.4 Specific Performance; Injunctive Relief. City shall have the right to specific performance and may proceed at law or in equity to require Developer to perform its obligations and covenants under this Agreement, and may enjoin acts or things which may be unlawful or in violation of the provisions hereof. 9.5 Developer Right of Contest. Developer 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 City or the rights of City hereunder. 9.6 No Remedy Exclusive; No Waiver by City. No remedy of City is intended to be exclusive of any other remedy herein or by law or in equity provided or permitted, but each shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing at law or in equity. 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. SECTION 10. Warranty of Authorized Signatories. Each of the signatories hereby warrants and represents that he or she is competent and authorized to execute this Agreement on behalf of the party for whom he or she purports to sign. SECTION 11. Miscellaneous. (a) Successors and Assigns; Runs With Land. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors, successors-in-interest (but not bona-fide third party buyers of homes in the Project) assigns, legal representatives, parent, subsidiary, affiliated and related entities, officers, directors, principals, agents, servants, employees, representatives, and all persons, firms, associations and/or corporations connected with them, including, without -11- 12853-0001\1862758v2.doc 232 limitation, their insurers, sureties and/or attorneys. This Agreement shall encumber and bind the Project and shall "run with the land" with respect to the Project, but shall not bind bona-fide third party buyers of homes in the Project. (b) Attorneys' Fees. In the event that any action, suit or other proceeding is instituted to remedy, prevent or obtain relief from a breach of this Agreement, or arising out of a breach of this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees and cost incurred in such action, suit or other proceeding, including any and all appeals or petitions therefrom. (c) Severability. Should any part, term or provision of this Agreement be declared or determined by any court to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provision shall be deemed not to be a part of this Agreement. (d) Assistance of Counsel. Developer and City acknowledge that: (i) they have been represented by independent counsel in connection with this Agreement; (ii) they have executed this Agreement with the advice of such counsel; and (iii) this Agreement is the result of negotiations between the Parties and the advice and assistance of their respective counsel. Each of the Parties has equally participated in the drafting and preparation of this Agreement, and it is the intention of the Parties that the construction of interpretation of this Agreement shall be made without reference to the Party who drafted any portion or particular provision of this Agreement or the relative size and or bargaining power of the Parties. SECTION 12. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. SECTION 13. Waiver of Protest Rights. Developer agrees that any fees and payment for this Project shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to Califomia Government Code Section 66020 and statues amendatory or supplementary thereto, or any other applicable state or federal law. SECTION 14. Notices. Any notice to be given pursuant to this Agreement shall be in writing, and all such notices and any other document to be delivered shall be delivered by personal service or by deposit in the United States mail, certified or registered, return receipt requested, with postage prepaid, and addressed to the party for whom intended as follows: _12- 12853-0001\1862758v2.doc 233 To City: City Manager City of Moorpark 799 Moorpark Avenue Moorpark, California 93021 To Developer: A. DeeWayne Jones, Manager Canyon Crest Ranch Partners-Moorpark, LLC 2300 Alessandro Drive Ventura, CA 93001 Either party may, from time to time, by written notice to the other, designate a different address or contact person, who shall be substituted for the one above specified. Notices, payments and other documents shall be deemed delivered upon receipt by personal service or as of the third (3rd) day after deposit in the United States mail. SECTION 15. Amendments and Waivers. No term or provision of this Agreement can be amended or waived, either orally or by a course of conduct, but only by an instrument in writing signed by the party against whom enforcement of such amendment or waiver is sought. SECTION 16. Entire Agreement. This Agreement, the Development Agreement, and the Conditions of Approval constitute the entire agreement and understanding of the parties with respect to its subject matter and they supersede all prior and contemporaneous agreements and understandings of the parties with respect to that subject matter. SECTION 17. Headings and Attachments. The title of this Agreement and the headings of its sections are for convenience of reference only and are not to be referred to in interpreting or construing this Agreement. However, all attachments and exhibits to this Agreement, as well as the Recitals, are a part of this Agreement. SECTION 18. Governing Law and Interpretation. This Agreement is to be governed by and construed in accordance with the laws of the State of California. No term or provision of this Agreement is to be construed against a party by reason of its having drafted the same. This Agreement is made, entered into and executed in Ventura County, California, and any action filed in any court for the interpretation, enforcement or other action arising from any term, covenant or condition herein shall be filed in Ventura County. SECTION 19. Time of Essence. Time is of the essence of every provision hereof in which time is a factor. -13- 12853-0001\1862758v2 doc 234 11/20/2015 00:57 0055297921 JONES DEVELOPMENT PAGE 01 CITY: DEVELOPER: CITY OF MOORPARK CANYON CREST RANCH PARTNERS- MOORPARK, LLC , a Cal% • • is limiteVaility coriYoralion BY. By: r*1i...,s f • ,.,""� .. y, 40 Janice S. Parvin . * _' . ne ones r Mayor Title: Manager ATTEST: By: Maureen Benson, City Clerk -14- - 2653-000111862758v.Z.dcc 235