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HomeMy WebLinkAboutAGENDA REPORT 2010 0721 CC REG ITEM 11C v OF MOORPARK,CA-0 :. City Council Meeting ITEM 11.C. of -�f- �0i0 ORDINANCE NO. 391 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, ADOPTING A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF MOORPARK AND PARDEE HOMES WHEREAS, Section 65864, Article 2.5, Chapter 4, Division 1, Title 7 of the State Planning and Zoning Law provides that cities may enter into contractual obligations known as Development Agreements with persons having equitable interest in real property for development of that property; and WHEREAS, Pardee Homes, the owners of the land with an application for Amendment No. 2 to Specific Plan No. 2, Moorpark Highlands, Zoning Ordinance Amendment No. 2009-01, Tentative Tract Map No. 5860, and Residential Planned Development No. 2009-02, have applied to the City of Moorpark to seek a Development Agreement with the City pursuant to Chapter 15.40 of the Moorpark Municipal Code; and WHEREAS, the Planning Commission of the City of Moorpark on June 15, 2010, adopted Resolution No. PC 2010-555 recommending to the City Council approval of Development Agreement No. 2009-01, proposed in conjunction with the project initiated by Pardee Homes, consisting of Amendment No. 2 to Specific Plan No. 2, Moorpark Highlands, Zoning Ordinance Amendment No. 2009-01, Tentative Tract Map No. 5860, and Residential Planned Development No. 2009-02; and WHEREAS, a duly noticed public hearing was conducted by the City Council on July 7, 2010, to consider the Development Agreement and to accept public testimony related thereto; and WHEREAS, the City Council has considered all points of public testimony relevant to the Development Agreement and has given careful consideration to the content of the Development Agreement. WHEREAS, the City Council, prior to making its decision on this project, has considered the Final EIR (SCH No. 96041030) prepared and certified for the Moorpark Highlands Specific Plan No. 2 project and Addendum No. 1 to this Final EIR, prepared for Amendment No. 2 to Moorpark Highlands Specific Plan No. 2 pursuant to the California Environmental Quality Act (CEQA) in accordance with Sections 15162 and 15164 of the California Code of Regulations (CEQA Guidelines). No new information or impacts that require preparation of a new or subsequent EIR have been identified as a result of the proposed amendments to the project. 193 Ordinance No. 391 Page 2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK DOES ORDAIN AS FOLLOWS: SECTION 1. The City Council of the City of Moorpark does hereby find as follows: A. The Development Agreement is consistent with the General Plan. B. The Development Agreement and the assurances that said agreement places upon the project are consistent with the intent and provisions of the Moorpark Highlands Specific Plan No. 2 as amended. C. The Development Agreement is necessary to ensure the public health, safety and welfare. SECTION 2. The City Council hereby adopts Development Agreement No. 2009-01 (attached hereto) between the City of Moorpark, a municipal corporation, and Pardee Homes, and the City Clerk is hereby directed to cause one copy of the signed, adopted agreement to be recorded with the County Recorder no later than ten (10) days after the City enters into the development agreement pursuant to the requirements of Government Code Section 65868.5. SECTION 3. Upon the effective date of this ordinance, the Community Development Director shall cause the property that is the subject of the Development Agreement to be identified on the Zoning Map of the City by the designation "DA" followed by the dates of the term of said Agreement. SECTION 4. If any section, subsection, sentence, clause, phrase, part or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council declares that it would have adopted this Ordinance and each section, subsection, sentence, clause, phrase, part or portion thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses, phrases, parts or portions be declared invalid or unconstitutional. SECTION 5. This Ordinance shall become effective thirty (30) days after its passage and adoption. SECTION 6. The City Clerk shall certify to the passage and adoption of this ordinance; shall enter the same in the book of original ordinances of said City; shall make a minute of the passage and adoption thereof in the records of the proceedings of the City Council at which the same is passed and adopted; and shall, within fifteen (15) days after the passage and adoption thereof, cause the same to be published once in the Moorpark Star a newspaper of general circulation, as defined in Section 6008 of the Government Code, for the City of Moorpark, and which is hereby designated for that purpose. 194 Ordinance No. 391 Page 3 PASSED AND ADOPTED this 21 st day of July, 2010. Janice Parvin, Mayor ATTEST: Deborah S. Traffenstedt, City Clerk Attachment: EXHIBIT A- Development Agreement No. 2009-01 195 Ordinance No. 391 Page 4 Recording Requested By And When Recorded Return to: CITY CLERK CITY OF MOORPARK 799 Moorpark Avenue Moorpark, California 93021 EXEMPT FROM RECORDER'S FEES Pursuant to Government Code § 6103 DEVELOPMENT AGREEMENT BY AND BETWEEN THE CITY OF MOORPARK AND PARDEE HOMES THIS AGREEMENT SHALL BE RECORDED WITHIN TEN DAYS OF EXECUTION BY ALL PARTIES HERETO PURSUANT TO THE REQUIREMENTS OF GOVERNMENT CODE §65868.5 196 Ordinance No. 391 Page 5 DEVELOPMENT AGREEMENT This Development Agreement ("the Agreement') is made and entered into on , by and between the CITY OF MOORPARK, a municipal corporation, (referred to hereinafter as "City") and Pardee Homes, a California corporation, the owner of real property within the City of Moorpark generally referred to as the Moorpark Highlands Specific Plan Planning Area No. 7 (referred to hereinafter individually as "Developer"). City and Developer are referred to hereinafter individually as "Party" and collectively as "Parties." In consideration of the mutual covenants and agreements contained in this Agreement, City and Developer agree as follows: 1. Recitals. This Agreement is made with respect to the following facts and for the following purposes, each of which is acknowledged as true and correct by the Parties: 1.1. Pursuant to Government Code Section 65864 et seq. and Moorpark Municipal Code Chapter 15.40, City is authorized to enter into a binding contractual agreement with any person having a legal or equitable interest in real property within its boundaries for the development of such property in order to establish certainty in the development process. 1.2. The City and Developer entered into a Memorandum of Understanding (MOU) on April 1, 2009, regarding development of the school site as identified in Specific Plan No. 95-2, approximately 22 acres of land within the City ("the Property"), as more specifically described in Exhibit "A" attached hereto and incorporated herein. The property may also be referred to as Moorpark Highlands Specific Plan Planning Area No. 7. This Agreement supersedes the MOU for the development of the Property. 1.3. Prior to approval of this Agreement, the City Council of City ("the City Council') approved Amendment No. 2 to Specific Plan 95-2 for the Property. 1.4. Amendment No. 2 to Specific Plan No. 95-2, Vesting Tentative Tract Map No. 5860 (Tract 5860) and Residential Planned Development Permit No. 2009-02 (RPD 2009-02) [collectively "the Project Approvals"; individually "a Project Approval'] provide for the development of the Property and the construction of certain off-site improvements in connection therewith ("the Project'). 1.5. By this Agreement, City desires to obtain the binding agreement of Developer to develop the Property in accordance with the Project Approvals and this Agreement. In consideration thereof, City agrees to 197 Ordinance No. 391 Page 6 limit the future exercise of certain of its governmental and proprietary powers to the extent specified in this Agreement. 1.6. By this Agreement, Developer desires to obtain the binding agreement of City to permit the development of the Property in accordance with the Project Approvals and this Agreement. Developer anticipates developing the Property over a minimum of three (3) years. In consideration thereof, Developer agrees to waive its rights to legally challenge the limitations and conditions imposed upon the development of the Property pursuant to the Project Approvals and this Agreement and to provide the public benefits and improvements specified in this Agreement. 1.7. City and Developer acknowledge and agree that the consideration that is to be exchanged pursuant to this Agreement is fair, just and reasonable and that this Agreement is consistent with the General Plan of City, as amended at time of adoption of Ordinance No. 391 for this Agreement by the City Council. 1.8. On June 15, 2010, the Planning Commission of City commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing recommended approval of the Agreement. 1.9. On July 7, 2010, the City Council commenced a duly noticed public hearing on this Agreement, and at the conclusion of the hearing on July 7, 2010, approved the Agreement by Ordinance No. 391 ("the Enabling Ordinance"). 2. Property Subject To This Agreement. All of the Property shall be subject to this Agreement. The Property may also be referred to hereinafter as "the site" or "the Project". 3. Binding Effect. The burdens of this Agreement are binding upon, and the benefits of the Agreement inure to, each Party and each successive successor in interest thereto and constitute covenants that run with the Property. Whenever the terms "City" and "Developer" are used herein, such terms shall include every successive successor in interest thereto, except that the term "Developer" shall not include the purchaser or transferee of any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement. 3.1. Constructive Notice and Acceptance. Every person who acquires any right, title or interest in or to any portion of the Property except any lot within the Project that has been fully developed in accordance with the Project Approvals and this Agreement shall be, conclusively deemed to have consented and agreed to be bound by this Agreement, whether 198 Ordinance No. 391 Page 7 or not any reference to the Agreement is contained in the instrument by which such person acquired such right, title or interest. 3.2. Release Upon Transfer. Upon the sale or transfer of any of Developer's interest in any portion of the Property, that Developer shall be released from its obligations with respect to the portion so sold or transferred subsequent to the operative date of the sale or transfer, provided that the Developer (i) was not in breach of this Agreement at the time of the sale or transfer and (ii) prior to the sale or transfer, delivered to City a written assumption agreement in a form acceptable to the City Attorney, duly executed by the purchaser or transferee and notarized by a notary public, whereby the purchaser or transferee expressly assumes the obligations of Developer under this Agreement with respect to the sold or transferred portion of the Property. Failure to provide a written assumption agreement hereunder shall not negate, modify or otherwise affect the liability of the purchaser or transferee pursuant to this Agreement. Nothing contained herein shall be deemed to grant to City discretion to approve or deny any such sale or transfer, except as otherwise expressly provided in this Agreement. 3.3. In the event of a partial assignment or transfer, the assumption agreement referenced in subsection 3.2 shall include provisions acceptable to the City to ensure that the phased construction of affordable housing units contemplated by Section 6.9 is achieved, regardless of the identity or number of developers of the Project. 4. Development of the Property. The following provisions shall govern the subdivision, development and use of the Property. 4.1. Permitted Uses. The permitted and conditionally permitted uses of the Property shall be limited to those that are allowed by the Project Approvals and this Agreement. 4.2. Development Standards. All design and development standards, including but not limited to density or intensity of use and maximum height and size of buildings, that shall be applicable to the Property are set forth in the Project Approvals and this Agreement. 4.3. Building Standards. All construction on the Property shall adhere to the Uniform Building Code, including the Fire Resistive Design Manual, the National Electrical Code, the Uniform Plumbing Code, the Uniform Mechanical Code, the Uniform Housing Code, the Uniform Code for the Abatement of Dangerous Buildings, the Uniform Code for Building Conservation and the Uniform Administrative Code in effect at the time the plan check or permit is approved and to any federal or state 199 Ordinance No. 391 Page 8 building requirements that are then in effect (collectively "the Building Codes"). 4.4. Reservations and Dedications. All reservations and dedications of land for public purposes that are applicable to the Property are set forth in the Project Approvals and this Agreement. 5. Vesting of Development Rights. 5.1. Timing of Development. In Pardee Construction Co. v. City of Camarillo, 37 Cal.3d 465 (1984), the California Supreme Court held that the failure of the parties therein to provide for the timing or rate of development resulted in a later-adopted initiative restricting the rate of development to prevail against the parties' agreement. City and Developer intend to avoid the result in Pardee by acknowledging and providing that Developer shall have the right, without obligation, to develop the Property in such order and at such rate and times as Developer deems appropriate within the exercise of its subjective business judgment. In furtherance of the Parties intent, as set forth in this subsection, no future amendment of any existing City ordinance or resolution, or future adoption of any ordinance, resolution or other action, that purports to limit the rate or timing of development over time or alter the sequencing of development phases, whether adopted or imposed by the City Council or through the initiative or referendum process, shall apply to the Property provided the Property is developed in accordance with the Project Approvals and this Agreement. Nothing in this subsection shall be construed to limit City's right to insure that Developer timely provides all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement. 5.2. Amendment of Project Approvals. No amendment of any of the Project Approvals, whether adopted or approved by the City Council or through the initiative or referendum process, shall apply to any portion of the Property, unless the Developer has agreed in writing to the amendment. 5.30 Issuance of Subsequent Approvals. Applications for land use approvals, entitlements and permits, including without limitation subdivision maps (e.g. tentative, vesting tentative, parcel, vesting parcel, and final maps), subdivision improvement agreements and other agreements relating to the Project, lot line adjustments, preliminary and final planned development permits, use permits, design review approvals (e.g. site plans, architectural plans and 200 Ordinance No. 391 Page 9 landscaping plans), encroachment permits, and sewer and water connections that are necessary to or desirable for the development of the Project (collectively "the Subsequent Approvals"; individually "a Subsequent Approval") shall be consistent with the Project Approvals and this Agreement. For purposes of this Agreement, Subsequent Approvals do not include building permits. Subsequent Approvals shall be governed by the Project Approvals and by the applicable provisions of the Moorpark General Plan, the Moorpark Municipal Code and other City ordinances, resolutions, rules, regulations, policies, standards and requirements as most recently adopted or approved by the City Council or through the initiative or referendum process and in effect at the time that the application for the Subsequent Approval is deemed complete by City (collectively "City Laws"), except City Laws that: (a) change any permitted or conditionally permitted uses of the Property from what is allowed by the Project Approvals; (b) limit or reduce the density or intensity of the Project, or any part thereof, or otherwise require any reduction in the number of proposed buildings or other improvements from what is allowed by the Project Approvals. (c) limit or control the rate, timing, phasing or sequencing of the approval, development or construction of all or any part of the Project in any manner, provided that all infrastructure required by the Project Approvals to serve the portion of the Property covered by the Subsequent Approval is in place or is scheduled to be in place prior to completion of construction; (d) are not uniformly applied on a City-wide basis to all substantially similar types of development projects or to all properties with similar land use designations; (e) control residential rents; (f) prohibit or regulate development on slopes with grades greater than 20 percent, including without limitation Moorpark Municipal Code Chapter 17.38 or any successor thereto, within the Property; or (g) modify the land use from what is permitted by the City's General Plan Land Use Element at the operative date of this Agreement or that prohibits or restricts the establishment or expansion of 201 Ordinance No. 391 Page 10 urban services including but not limited to community sewer systems to the Project. 5.4. Term of Subsequent Approvals. The term of any tentative map for the Property, or any portion thereof, shall expire ten (10) years after its approval or conditional approval or upon the expiration or earlier termination of this Agreement, whichever occurs first, notwithstanding the provisions of Government Code Section 66452.6(a) or the fact that the final map may be filed in phases. Developer hereby waives any right that it may have under the Subdivision Map Act, Government Code Section 66410 et seq., or any successor thereto, to apply for an extension of the time at which the tentative map expires pursuant to this subsection. No portion of the Property for which a final map or parcel map has been recorded shall be reverted to acreage at the initiative of City during the term of this Agreement. The term of any Subsequent Approval, except a tentative map or subdivision improvement or other agreements relating to the Project, shall be one year; provided that the term may be extended by the decision maker for two (2) additional one (1) year periods upon application of the Developer holding the Subsequent Approval filed with City's Community Development Department prior to the expiration of that Approval. Each such Subsequent Approval shall be deemed inaugurated, and no extension shall be necessary, if a building permit was issued and the foundation received final inspection by City's Building Inspector prior to the expiration of that Approval. It is understood by City and Developer that certain Subsequent Approvals may not remain valid for the term of this Agreement. Accordingly, throughout the term of this Agreement, any Developer shall have the right, at its election, to apply for a new permit to replace a permit that has expired or is about to expire. 5.5. Modification of Approvals. Throughout the term of this Agreement, Developer shall have the right, at its election and without risk to or waiver of any right that is vested in it pursuant to this section, to apply to City for modifications to Project Approvals and Subsequent Approvals. The approval or conditional approval of any such modification shall not require an amendment to this Agreement, provided that, in addition to any other findings that may be required in order to approve or conditionally approve the modification, a finding is made that the modification is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals. 202 Ordinance No. 391 Page 11 5.6. Issuance of Buildinq Permits. No building permit, final inspection or certificate of occupancy will be unreasonably withheld from Developer if all infrastructure required by the Project Approvals, Subsequent Approvals, and this Agreement to serve the portion of the Property covered by the building permit is in place or is scheduled to be in place prior to completion of construction and all of the other relevant provisions of the Project Approvals, Subsequent Approvals and this Agreement have been satisfied. Consistent with Subsection 5.1 of this Agreement, in no event shall building permits be allocated on any annual numerical basis or on any arbitrary allocation basis. 5.7. Moratorium on Development. Nothing in this Agreement shall prevent City, whether by the City Council or through the initiative or referendum process, from adopting or imposing a moratorium on the processing and issuance of Subsequent Approvals and building permits and on the finalizing of building permits by means of a final inspection or certificate of occupancy, provided that the moratorium is adopted or imposed (i) on a City-wide basis to all substantially similar types of development projects and properties with similar land use designations and (ii) as a result of a utility shortage or a reasonably foreseeable utility shortage, including without limitation a shortage of water, sewer treatment capacity, electricity or natural gas. 6. Developer Agreements. 6.1. Developer shall comply with (i) this Agreement, (ii) the Project Approvals, (iii) all Subsequent Approvals for which it was the applicant or a successor in interest to the applicant and (iv) Addendum to the Moorpark Highlands Specific Plan No. 2 Final Environmental Impact Report, (Final EIR) and the Mitigation Monitoring Program (MMP) of the Final EIR and any subsequent or supplemental environmental actions. 6.2. All lands and interests in land dedicated to City shall be free and clear of liens and encumbrances other than easements or restrictions that do not preclude or interfere with use of the land or interest for its intended purpose, as reasonably determined by City. 6.3. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a development fee as described herein (the "Development Fee"). The Development Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Development Fee shall be Eight Thousand One Hundred and Fifty-Three Dollars ($8,153.00) per 203 Ordinance No. 391 Page 12 residential unit and Thirty-Six Thousand Six Hundred and Eighty-Nine Dollars ($36,689.00) per gross acre of institutional land. The fee shall be adjusted annually commencing July 1, 2011 by the larger increase of a) or b) as follows: a) Consumer Price Index (CPI): any increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of April over the prior April. b) Caltrans Highway Bid Price Index: the calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period ending the first quarter of the same year in which the Development Fee is to be paid. In the event there is a decrease in both of the referenced Indices for any annual indexing, the Development Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.4. As a condition of the issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a traffic mitigation fee as described herein ("Citywide Traffic Fee"). The Citywide Traffic Fee may be expended by City in its sole and unfettered discretion. On the operative date of this Agreement, the amount of the Citywide Traffic Fee shall be Nine Thousand Five Hundred and Forty-One Dollars ($9,541.00) per residential unit, and Forty-Two Thousand Nine Hundred and Thirty- Five Dollars ($42,935.00) per acre of institutional land on which the institutional use is located. Commencing on July 1, 2011, and annually thereafter, the contribution amount shall be increased to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period ending the first quarter of the same year ("annual indexing"). In the event there is a decrease in the referenced Index for any annual indexing, the current amount of the fee shall remain until such time as the next subsequent annual indexing which results in an increase. 6.5. As a condition of issuance of a building permit for each residential or institutional use within the boundaries of the Property, Developer shall pay City a community services fee as described herein (Community Services Fee). The Community Services Fee may be expended by 204 Ordinance No. 391 Page 13 City in its sole and unfettered discretion. The amount of the Community Services Fee shall be Six Hundred Forty Dollars ($640.00) per residential unit and Two Thousand Eight Hundred and Eighty Dollars ($2,880) per gross acre of institutional land on which the institution is located. The fee shall be adjusted annually commencing on July 1, 2011, by the larger increase of a) or b) as follows: a) Consumer Price Index (CPI): any increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of April over the prior April. b) Caltrans Highway Bid Price Index: the calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period ending the first quarter of the same year in which the Community Services Fee is to be paid. In the event there is a decrease in both of the referenced Indices for any annual indexing, the Community Services Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.6. Prior to the issuance of the building permit for each residential dwelling unit within the property, Developer shall pay a fee in lieu of the dedication of parkland and related improvements (Park Fee). On the operative date of this Agreement, the amount of the Park Fee shall be Seven Thousand Five Hundred Dollars ($7,500.00) for each residential dwelling unit. The fee shall be adjusted annually commencing July 1, 2011 by the larger increase of a) or b) as follows: a) Consumer Price Index (CPI): any increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/Orange County metropolitan area during the prior year. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of April over the prior April. 205 Ordinance No. 391 Page 14 b) Caltrans Highway Bid Price Index: the calculation shall be made to reflect the change in the Caltrans Highway Bid Price Index for Selected California Construction Items for the twelve (12) month period ending the first quarter of the same year in which the Park Fee is to be paid. In the event there is a decrease in both of the referenced Indices for any annual indexing, the Park Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.7. Prior to the issuance of the building permit for the 100th housing unit, Developer shall improve and dedicate to the City a twelve (12) foot wide multipurpose trail within a minimum twenty-five foot wide easement from Ridgecrest Drive to the Mammoth Highlands Park. The trail improvements shall consist of trail fencing, decomposed granite trail surface, and landscaping on both the east and west sides of the trail consisting of 24-inch box trees and 5-gallon shrubs, along with trees screening the easterly fence of Moorpark Highlands Park. Design of the trail shall be to the satisfaction of the Public Works Director/City Engineer, Parks and Recreation Director, and Community Development Director. 6.8. (This section is intentionally left blank.) 6.9. Developer agrees that densities vested and incentives and concessions received in the Project Approvals include all densities available as density bonuses and all incentives and concessions to which Developer is entitled under the Moorpark Municipal Code and Government Code Sections 65915 through 65917.5; Developer shall not be entitled to further density bonuses or incentives or concessions and further agrees, in consideration for the density bonus obtained through the Project Approvals that is greater than would otherwise be available to provide ten (10) housing units affordable to low income households as shown in the table below. Up to three (3) of the low income units may be provided in the residential project known as Waverly Place in SP-2 (RPD 2004-01 and Tract Map 5045). 206 Ordinance No. 391 Page 15 3 Bedroom 2 Bath 4 Bedroom 2 Bath Location of Unit (1,100 Sq. Ft. (1,400 Sq. Ft. Minimum) Minimum) Waverly Place 3 0 "Carriage Unit" Tract 5860 2 5 TOTAL 5 5 Developer explicitly acknowledges that its agreement to construct these affordable units is given both as specific consideration for both the density bonus and in general as consideration for City's willingness to negotiate and enter into this Agreement and for the valuable consideration given by City through this agreement. Developer further acknowledges that its agreement to construct these affordable units is not the result of an existing policy or regulation imposed by City but instead is the result of arm's length negotiation between the Parties. Developer shall construct the affordable units required of it pursuant to this Subsection 6.9 and shall meet all requirements of this Agreement. The proposed project and property on which the units are to be constructed shall conform to the City's General Plan, Zoning Codes, and the Moorpark Municipal Code. 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. Developer further agrees that it shall pay the same processing and development fees in the same amounts for the seven low income units as it is required to pay for the market rate units in Tract 5860. (The Developer has already paid the applicable processing and development fees for the three (3) low income units in Waverly Place.) Prior to recordation of the first Final Map for this Project, the City Council in its sole and unfettered discretion shall approve an Affordable Housing Purchase and Sale Agreement (Affordable Housing Agreement) that provides policies and guidelines to ensure that all of the required affordable housing units are provided consistent with this Agreement and applicable State laws and remains affordable for the longest feasible time. The Affordable Housing Agreement shall include but not be limited to the following items: Initial Purchase Price, market value, buyer eligibility, affordability and resale covenants and restrictions, equity share and second trust deed provisions, respective 207 Ordinance No. 391 Page 16 role of City and Developer, the responsibility of providing the affordable units by each developer in the event of successors and/or assigns to this Agreement, the final number of attached units that shall be provided to meet Developer's affordable housing obligation arising under this Agreement, quality of and responsibility for selection of amenities and applicability of home warranties to meet all or a portion of its obligation and any other items determined necessary by the City. The Developer and City shall, prior to the occupancy of the first residential unit for the Project, execute the Affordable Housing Agreement that is consistent with this Agreement and with Developers obligations hereunder. Developer shall pay the City's direct costs for preparation and review of the Affordable Housing Agreement up to a maximum of Ten-Thousand Dollars ($10,000.00). Developer agrees that three (3) affordable units will be provided within the existing Waverly Place neighborhood prior to the issuance of the first residential building permit within Tract 5860, with seven affordable housing units to be provided within Tract 5860 in accordance with the following schedule: • Prior to the 31st occupancy in Tract 5860, 2 affordable units in Tract 5860 shall be provided; • Prior to the 49th occupancy in Tract 5860, 1 additional affordable unit in Tract 5860 shall be provided; • Prior to the 68th occupancy in Tract 5860, 1 additional affordable unit in Tract 5860 shall be provided; • Prior to the 85th occupancy in Tract 5860, 1 additional affordable unit in Tract 5860 shall be provided; • Prior to the 106th occupancy in Tract 5860, 1 additional affordable unit in Tract 5860 shall be provided; • Prior to the 133rd occupancy in Tract 5860, 1 additional affordable unit in Tract 5860 shall be provided. All affordable units shall meet the criteria of all applicable State laws to qualify as newly affordable to low income and very low income persons (in the quantity as specified in this Agreement) and will satisfy a portion of the City's RHNA obligation and if within the Moorpark Redevelopment Agency project area to satisfy a portion of the Agency's affordable housing goals. The affordable units required by this Agreement are consideration for City's entry into this Agreement and therefore none of the affordable units shall duplicate or substitute for the affordable housing requirement of any other developer or development project. All subsequent approvals required of City under this Subsection 6.9 shall be made at City's sole discretion. If any conflict exists between this Agreement and any Affordable Housing 208 Ordinance No. 391 Page 17 Agreement required by and negotiated pursuant to this Agreement or the conditions of approval for Vesting Tentative Tract Map No. 5860 and/or RPD No. 2009-02, then the Affordable Housing Agreement shall prevail. For housing units constructed by Developer to meet its contractual obligation under this Subsection 6.9, Developer agrees to provide the same home warranties associated with other units in the same project as the constructed or purchased unit, or the maximum time required by State law, whichever is longer, but in no event less than ten (10) years. Developer agrees that all such warranties shall inure to the benefit of and be enforceable by the ultimate occupants of the low income units, and that all warranties by subcontractors and suppliers shall inure to the benefit of and be enforceable by such occupants. The qualified buyer (or City in lieu of a qualified buyer at its sole discretion) shall have the same choices of finish options as purchasers of other units in the project and final walk-through approval of condition of unit before close of sale. Any options provided to buyers of units shall be provided to buyer(s) of the required units including but not limited to color and style choices for carpeting and other floor coverings. Flooring selections shall be made within 10 days of Developer's request for selection. In the event the monthly HOA fees exceed One Hundred Dollars ($100.00), Developer shall deposit One Hundred Twenty Dollars ($120.00) for each dollar or portion thereof of the monthly HOA fees that are in excess of One Hundred Dollars ($100.00) into a City administered trust to assist with future HOA fees for each affected unit. The Affordable Sales Price for the low-income buyers shall not exceed affordable housing cost, as defined in Sec. 50052.5(b) (2) of California Health and Safety Code. Section 50052.5(h) of the California Health and Safety Code provides that an appropriate household size in terms of determining purchase prices, is one more person than the number of bedrooms. This means that the pricing for a three (3) bedroom unit will be based on a household of four (4), regardless of the actual size of the household purchasing the unit. The pricing for a four (4) bedroom unit will be based on a household of five (5) regardless of the actual size of the household purchasing the unit. For example, the monthly "affordable housing cost" for a three (3) bedroom unit would be 30% times 70% of $86,100, the current median income for a household of four (4) in Ventura County, divided by twelve (12). The monthly "affordable housing cost" for a four (4) bedroom unit would be 30% times 70% of $93,000, the current median income for a household of 209 Ordinance No. 391 Page 18 five (5) in Ventura county, divided by twelve (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 low income household would be $170,850 for a three bedroom unit and $185,350 for a four bedroom unit under current market conditions, based upon the following assumptions: Low Income Buyer Item Detail Amount 4 Bedroom 3 Bedroom Affordable Sales $185,350 $170,850 Price Down Payment 5% of Affordable $9,268 $8,543 Sales Price Loan Amount Affordable Sales $176,082 $162,308 Price less down payment Interest Rate 6.25% Property Tax 1.25% of Initial $193/mo $178/mo Purchase Price LMD $181mo $18/mo HOA $100/mo $100/mo. Fire Insurance $20/mo $20/mo. Maintenance $20/mo $20/mo. Utilities $214 $186/mo. The assumptions associated with the above purchase price figures for low income households include a 5% down payment, based on Affordable Sales Price of $170,850 for a three (3) bedroom unit and $185,350 for a four (4) bedroom unit, mortgage interest rate of 6.25%, no mortgage insurance, property tax rate of 1.25%, based on Affordable Sales Price, homeowners' association dues of $100 per month, fire insurance of $20 per month, maintenance costs of $20 per month, and utilities of$186 per month for a three (3) bedroom unit and $214 per month for a four (4) bedroom unit. Utilities are adjusted based on unit size. Developer acknowledges that changes in market conditions may result in changes to the Affordable Sales Price, down payment amounts, mortgage interest rates, and other factors for both low income and very low income buyers. Furthermore, if "affordable housing cost", as 210 Ordinance No. 391 Page 19 defined in Section 50052.5 of California Health and Safety Code, should change in the future, the above guidelines will be modified. The Affordable Housing Purchase and Sale Agreement negotiated pursuant to this Agreement shall address this potential change. In the event the City, at its sole discretion purchases one or more of the units from Developer in lieu of a qualified buyer, the Affordable Sales Price shall be based on a household size appropriate to the size of the unit being purchased by the City, consistent with all requirements of this Subsection 6.9. Developer agrees that, pursuant to City's rights under this Agreement and/or the Affordable Housing Agreement and prior to and upon the sale of a required unit to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City may at its sole discretion take any actions and impose any conditions on said sale or subsequent sale of the unit to ensure ongoing affordability to low and very low income households and related matters. After the sale of a housing unit by Developer to a qualified buyer (or City in lieu of a qualified buyer as determined by City at its sole discretion), City, not Developer, shall have sole responsibility for approving any subsequent sale of that housing unit. Developer shall pay closing costs for each affordable unit, not to exceed six thousand five hundred eighty-four dollars ($6,584.00). Beginning July 1, 2011, and on July 1 St for each of fifteen subsequent years, the maximum $6,584.00 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/Riverside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of December over the prior month of December. In the event there is a decrease in the CPI for any annual indexing, the closing costs for each affordable unit 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 at its sole discretion for one or more of the required units) in their acquisition of a unit from Developer not Developer's acquisition of a unit from one or more third parties. The Developer's escrow cost shall not exceed the then applicable maximum amount per unit regardless of the number of escrows that may be opened on a specific unit. In addition, in lieu of constructing any Very Low Income Affordable Housing Units on site, for each of the residential units, Developer shall 211 Ordinance No. 391 Page 20 pay to the City an In-Lieu Fee which shall be used by the City at its sole discretion for the purpose of providing housing affordable to very- low, low, or moderate income households. The In-Lieu Fee in the amount of Four Thousand Five hundred and Eight Dollars ($4,508.00) shall be paid prior to issuance of the building permit for each dwelling unit in the Project. Commencing on July 1, 2011, and annually thereafter, the In-Lieu Fee shall be adjusted by any increase in the Consumer Price Index until all In-Lieu Fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Anaheim/Riverside metropolitan area during the prior year. The calculation shall be made using the month of April over the prior month of April. In the event there is a decrease in the CPI for any annual indexing, the In-Lieu Fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.10. A. Developer agrees to (i) limit its total reimbursement from the proceeds of Bonds of CFD 2004-01 to $27,000,000.00 (ii) any funds in the Project Improvement Fund in excess of the amount required to fund such total reimbursement, less any CFD 2004-01 consultant costs associated with the redemption of Bonds and adding residential units approved in the Project Entitlements to CFD 2004-01, shall be applied to redeem a portion of the Bonds, consistent with applicable provisions of State and Federal laws and regulations. As a result of such redemption, the Special Taxes for Facilities shall be decreased in accordance with the Rate and Method (defined below). Developer agrees that no additional public improvements shall be eligible for reimbursement from CFD 2004-01 resulting from development of this property. B. To the extent permitted by applicable law, Developer agrees to initiate action to include the Property (except residential units designated to be sold to low income buyers pursuant to Section 6.9 of this Agreement) in CFD 2004-01 for purposes of levying the Special Tax for Facilities and the Special Tax for Services described in the First Amended Rate and Method of Apportionment as adopted by Resolution No. 2010- 2938 (the "Rate and Method"), which amends the original Rate and Method of Apportionment attached as Exhibit "B" to City Council Resolution No. 2004-2383. 6.11. Developer agrees to pay to City the Transportation System Management Fee (TSM Fee) for each residential unit and institutional use prior to the issuance of a building permit for each residential unit or 212 Ordinance No. 391 Page 21 institutional use. The TSM fee shall be One Thousand Seven Hundred and Nine Dollars ($1,709.00) for each residential unit and Twenty-Eight Cents ($0.28) per gross square foot of institutional building space. Commencing on July 1, 2011, and annually thereafter the TSM Fee shall be adjusted by any increase in the Consumer Price Index (CPI) until all fees have been paid. The CPI increase shall be determined by using the information provided by the U.S. Department of Labor, Bureau of Labor Statistics, for all urban consumers within the Los Angeles/Riverside/Orange County metropolitan area during the prior year. The calculation shall be made using the month of April over the prior month of April. In the event there is a decrease in the CPI for any annual indexing, the fee shall remain at its then current amount until such time as the next subsequent annual indexing which results in an increase. 6.12. Developer hereby waives any right that it may have under California Government Code Section 65915 et seq., or any successor thereto, or any other provision of Federal, State, or City laws or regulations for application or use of any density bonus that would increase the number of dwelling units approved to be constructed on the Property. 6.13. Developer agrees to cast affirmative ballots for the formation of one or more assessment districts and levying of assessments, for the maintenance of parkway and median landscaping, street lighting, including but not limited to all water and electricity costs, and if requested by the City Council, parks for the provision of special benefits conferred by same upon properties within the Project. Developer further agrees to form one or more property owner associations and to obligate said associations to provide for maintenance of parkway and median landscaping, street lighting, and if requested by the City Council, parks in the event the aforementioned assessment district is dissolved or altered in any way or assessments are reduced or limited in any way by a ballot election of property owners, or if the assessment district is invalidated by court action. Prior to recordation of the first final map for the Property, if required by City at its sole discretion, Developer shall also form one or more property owner associations to assume ownership and maintenance of open space land, trails, storm water detention and/or debris basins and related drainage facilities, landscaping, and other amenities, and to comply with the National Pollutant Discharge Elimination System (NPDES) requirements of the Project. The obligation of said property owner associations shall be more specifically defined in the conditions of approval of Tract 5860 and RPD 2009-02. 213 Ordinance No. 391 Page 22 6.14. In addition to fees specifically mentioned in this Agreement, Developer agrees to pay all City capital improvement, development, and processing fees at the rate and amount in effect at the time the fee is required to be paid. Said fees include but are not limited to Library Facilities Fees, Police Facilities Fees, Fire Facilities Fees, Art in Public Places Fees, drainage, entitlement processing fees, and plan check and permit fees for buildings and public improvements. Developer further agrees that unless specifically exempted by this Agreement, it is subject to all fees imposed by City at the operative date of this Agreement and such future fees imposed as determined by City in its sole discretion so long as said fee is imposed on similarly situated properties. 6.15. Developer shall pay the Los Angeles Avenue Area of Contribution (AOC) fee for each residential unit and institutional use prior to the issuance of a building permit for each residential unit or institutional use. The AOC fee shall be the dollar amount in effect at the time of issuance of the building permit. 6.16. Developer agrees that any fees and payments pursuant to this Agreement shall be made without reservation, and Developer expressly waives the right to payment of any such fees under protest pursuant to California Government Code Section 66020 and statutes amendatory or supplementary thereto. Developer further agrees that the fees it has agreed to pay pursuant to Subsections 6.3, 6.5, 6.9, 6.17 and 6.22 of this Agreement are not public improvement fees collected pursuant to Government Code Section 66006 and statutes amendatory or supplementary thereto. 6.17. Developer agrees to comply with Section 15.40.150 of the Moorpark Municipal Code and any provision amendatory or supplementary thereto for annual review of this Agreement and further agrees that the annual review shall include evaluation of its compliance with the MMP of the Final EIR. 6.18. Developer agrees that any election to acquire property by eminent domain shall be at City's sole discretion, and only after compliance with all legally required procedures including but not limited to a hearing on a proposed resolution of necessity. 6.19. On the operative date of this Agreement, Developer shall pay all outstanding City processing costs related to preparation of this Agreement, Project Approvals, and the MMP of the Final EIR. 214 Ordinance No. 391 Page 23 6.20. In the event any of the "referenced Index" or "CPI" referred to in any portion of Section 6 above, are discontinued or revised, such successor index with which the "CPI" and or "referenced Index" are replaced shall be used in order to obtain substantially the same result as would otherwise have been obtained if either or both the "CPI" and "referenced Index" had not been discontinued or revised. 6.21. Prior to the issuance of the building permit for the one-hundredth (100th) residential unit, Developer shall either extend and pave Ridgecrest Drive to Alternate SR-23 or pay the City for the cost of the improvements at the sole discretion of the City. The improvements shall be to the satisfaction of the Public Works Director/City Engineer and Community Development Director and shall consist of concrete curb and gutter, full pavement, concrete sidewalk on the south side of Ridgecrest Drive consistent with the existing improvements on the south side of Ridgecrest Drive. 6.22. Developer agrees, effective July 1, 2011, the One Hundred Fifty Thousand Dollar ($150,000.00) payment contained in Section 6.30 of the Development Agreement of Ordinance No. 263 to fund the maintenance of the trail system and the Three Hundred Fifty Thousand Dollar ($350,000.00) payment contained in Section 6.9 of the Development Agreement of Ordinance No. 263 to fund the replacement of park amenities shall be increased in the same manner as the CPI increase provided for in Section 6.6 of the Development Agreement of Ordinance No. 263. These fees are to be paid only once to meet the requirements of both the Development Agreement under Ordinance No. 263 and this Development Agreement. 6.23. Developer agrees to provide additional improvements to the Elk Run Loop public right-of-way between Ridgecrest Drive and Grottoes Way in the form of a raised landscaped median street section to the satisfaction of the Public Works Director/City Engineer and Community Development Director. 6.24. Prior to the issuance of the first building permit for a residential unit, Developer agrees to provide a plan for City review and approval at City's sole discretion, for improvements that would be completed immediately, should ongoing construction of residential units be suspended at any time and for any reason after the first residential unit is occupied. Improvements to be addressed in the plan shall include, but not be limited to, the trail identified in Section 6.22, the Elk Run Loop improvements identified in Section 6.25, the private recreation facility approved as part of RPD 2009-02 and Tract 5860, internal private streets, and the maintenance of undeveloped lots. Developer 215 Ordinance No. 391 Page 24 further agrees to provide surety to the City in an amount and form acceptable to the City Manager, City Attorney, and Public Works Director/City Engineer to ensure completion of all improvements identified in the plan. 6.25. Developer agrees to withdraw any legal action against City pertaining to the School Site and CFD 2004-01 within one hundred twenty (120) calendar days following the later of (i) the effective date of this Agreement, or (ii) the effective date of all of the project approvals if no legal action or referendum petition has been filed regarding the approval of this Agreement. Developer also agrees to withdraw any legal action against Moorpark Unified School District pertaining to the School Site within one hundred twenty (120) calendar days following the later of (i) the effective date of this Agreement, or (ii) the effective date of all of the project approvals if no legal action or referendum petition has been filed regarding the approval of this Agreement. 6.26. Developer assumes all risk, liabilities and costs including submission of revised plans, or removal, or repair or reconstruction of any improvement, for any model homes, or grading, or other improvements prior to City Council approval of a final map for Tract 5860. 7. City Agreements. 7.1. City shall commit reasonable time and resources of City staff to work with Developer on the expedited and parallel processing of applications for Subsequent Approvals for the Project area and shall use overtime and independent contractors whenever possible. Developer shall assume any risk related to, and shall pay the additional costs incurred by City for, the expedited and parallel processing. 7.2. If requested in writing by Developer and limited to City's legal authority, City at its sole discretion shall proceed to acquire, at Developer's sole cost and expense, easements or fee title to land in which Developer does not have title or interest in order to allow construction of public improvements required of Developer including any land which is outside City's legal boundaries. The process shall generally follow Government Code Section 66462.5 et seg. and shall include the obligation of Developer to enter into an agreement with City, guaranteed by cash deposits and other security as the City may require, to pay all City costs including but not limited to, acquisition of the interest, attorney fees, appraisal fees, engineering fees, City staff costs, and City overhead expenses of fifteen percent (15%) on all out- of-pocket costs. 216 Ordinance No. 391 Page 25 7.3. The City Manager is authorized to sign an early grading agreement on behalf of City to allow rough grading of the Project prior to City Council approval of a final subdivision map. Said early grading agreement shall be consistent with the approved conditions of Specific Plan 95-2 Amendment 1, Tract 5860 and RPD 2009-02 and contingent on City Engineer and Community Development Director acceptance of a Performance Bond in a form and amount satisfactory to them to guarantee implementation of the erosion control plan and completion of the rough grading and construction of on-site and off-site improvements. In the case of failure to comply with the terms and conditions of the early grading agreement, the City Council may by resolution declare the surety forfeited. 7.4. City agrees that whenever possible as determined by City in its sole discretion to process concurrently all land use entitlements for the same property so long as said entitlements are deemed complete. 7.5. City agrees to issue building permits for model homes for which an Administrative Permit has been approved and that meet all applicable Building Code requirements prior to the recordation of a Final Map, so long as Developer has executed an agreement in a form approved by the City Attorney and City Manager absolving City of any responsibilities, liabilities and costs for construction of the model homes. No final building permits will be issued by the City to allow for residential occupancy of the model homes unless all applicable conditions for residential occupancy are met. 7.6. City agrees that the Park Fee required under subsection 6.6 of this Agreement combined with the trail improvements and dedication required under Subsection 6.7 of this Agreement meet Developer's obligation for park land dedication provisions of state law and City codes. 7.7. The City agrees to appoint an affordable housing staff person to oversee the implementation of the affordable housing requirements for the Property required herein for the duration such units are required to be maintained as affordable consistent with the provisions of Subsection 6.9 of this Agreement and the Purchase and Sale Agreement. 7.8. City shall facilitate the reimbursement to Developer of any costs incurred by Developer that may be subject to partial reimbursement from other developers as a condition of approval of a tract map development permit or development agreement with one or more other developers. 217 Ordinance No. 391 Page 26 7.9. Upon Completion of annexation of the Property into CFD 2004-01, City agrees that funds in the Project Improvement Fund may be disbursed to fund City Fees applicable to such residential units in accordance with the Funding Agreement, upon Developer's submittal of one or more Payment Requests, and Developer may receive a total reimbursement from the Project Improvement Fund in an amount of $27,000,000.00, inclusive of any disbursements for such City fees, consistent with subsection 6.10.A. 8. Supersession of Agreement by Change of Law. In the event that any state or federal law or regulation enacted after the date the Enabling Ordinance was adopted by the City Council prevents or precludes compliance with any provision of the Agreement, such provision shall be deemed modified or suspended to comply with such state or federal law or regulation, as reasonably determined necessary by City. 9. Demonstration of Good Faith Compliance. In order to ascertain compliance by Developer with the provisions of this Agreement, the Agreement shall be reviewed annually in accordance with Moorpark Municipal Code Chapter 15.40. of City or any successor thereof then in effect. The failure of City to conduct any such annual review shall not, in any manner, constitute a breach of this Agreement by City, diminish, impede, or abrogate the obligations of Developer hereunder or render this Agreement invalid or void. At the same time as the referenced annual review, City shall also review Developer's compliance with the Final EIR and Mitigation and Monitoring Program. 10. Authorized Delays. Performance by any Party of its obligations hereunder, other than payment of fees, shall be excused during any period of "Excusable Delay", as hereinafter defined, provided that the Party claiming the delay gives written notice of the delay to the other Parties as soon as possible after the same has been ascertained. For purposes hereof, Excusable Delay shall mean delay that directly affects, and is beyond the reasonable control of, the Party claiming the delay, including without limitation: (a) act of God; (b) civil commotion; (c) riot; (d) strike, picketing or other labor dispute; (e) shortage of materials or supplies; (e) damage to work in progress by reason of fire, flood, earthquake or other casualty; (f) failure, delay or inability of City to provide adequate levels of public services, facilities or infrastructure to the Property including, by way of example only, the lack of water to serve any portion of the Property due to drought; (g) delay caused by a restriction imposed or mandated by a governmental entity other than City; or (h) litigation brought by a third party attacking the validity of this Agreement, a Project Approval, a Subsequent Approval or any other action necessary for development of the Property. 218 Ordinance No. 391 Page 27 11. Default Provisions. 11.1. Default by Developer. The Developer shall be deemed to have breached this Agreement if it: (a) practices, or attempts to practice, any fraud or deceit upon City; or willfully violates any order, ruling or decision of any regulatory or judicial body having jurisdiction over the Property or the Project, provided that Developer may contest any such order, ruling or decision by appropriate proceedings conducted in good faith, in which event no breach of this Agreement shall be deemed to have occurred unless and until there is a final adjudication adverse to Developer; or (b) fails to make any payments required under this Agreement; or (c) materially breaches any of the provisions of the Agreement. 11.2. Default by City. City shall be deemed in breach of this Agreement if it materially breaches any of the provisions of the Agreement. 11.3. Content of Notice of Violation. Every notice of violation shall state with specificity that it is given pursuant to this subsection of the Agreement, the nature of the alleged breach, and the manner in which the breach may be satisfactorily cured. Every notice shall include a period to cure, which period of time shall not be less than ten (10) days from the date that the notice is deemed received, provided if the defaulting party cannot reasonably cure the breach within the time set forth in the notice such party must commence to cure the breach within such time limit and diligently effect such cure thereafter. The notice shall be deemed given on the date that it is personally delivered or on the date that it is deposited in the United States mail, in accordance with Section 20 hereof. 11.4. Remedies for Breach. The Parties acknowledge that remedies at law, including without limitation money damages, would be inadequate for breach of this Agreement by any Party due to the size, nature and scope of the Project. The Parties also acknowledge that it would not be feasible or possible to restore the Property to its natural condition once implementation of the Agreement has begun. Therefore, the Parties agree that the remedies for breach of the Agreement shall be limited to the remedies expressly set forth in this subsection. Prior to pursuing the remedies set forth herein, notice and an opportunity to cure shall be provided pursuant to Subsection 11.3 herein. 219 Ordinance No. 391 Page 28 The remedies for breach of the Agreement by City shall be injunctive relief and/or specific performance. The remedies for breach of the Agreement by Developer shall be injunctive relief and/or specific performance, including, in the case of a failure to pay a fee required hereunder, to compel such payment. In addition, if the breach is of Subsections 6.9, 6.10, 6.12, 6.13, 6.14, 6.16, 6.17, 6.19, 6.21, 6.23, 6.24, 6.25 and 6.26 of this Agreement, City shall have the right to withhold the issuance of building permits to Developer throughout the Project from the date that the notice of violation was given pursuant to Subsection 11.3 hereof until the date that the breach is cured as provided in the notice of violation. Nothing in this subsection shall be deemed to preclude City from prosecuting a criminal action against any Developer who violates any City ordinance or state statute. 12. Mort-a-ge Protection. At the same time that City gives notice to Developer of a breach, City shall send a copy of the notice to each holder of record of any deed of trust on the portion of the Property in which Developer has a legal interest ("Financier"), provided that the Financier has given prior written notice of its name and mailing address to City and the notice makes specific reference to this section. The copies shall be sent by United States mail, registered or certified, postage prepaid, return receipt requested, and shall be deemed received upon the third (3rd) day after deposit. Each Financier that has given prior notice to City pursuant to this section shall have the right, at its option and insofar as the rights of City are concerned, to cure any such breach within fifteen (15) days after the receipt of the notice from City. If such breach cannot be cured within such time period, the Financier shall have such additional period as may be reasonably required to cure the same, provided that the Financier gives notice to City of its intention to cure and commences the cure within fifteen (15) days after receipt of the notice from City and thereafter diligently prosecutes the same to completion. City shall not commence legal action against Developer by reason of Developer's breach without allowing the Financier to cure the same as specified herein. Notwithstanding any cure by Financier, this Agreement shall be binding and effective against the Financier and every owner of the Property, or part thereof, whose title thereto is acquired by foreclosure, trustee sale or otherwise. 13. Estoppel Certificate. At any time and from time to time, Developer may deliver written notice to City and City may deliver written notice to Developer requesting that such Party certify in writing that, to the knowledge of the certifying Party, (i) this Agreement is in full force and effect and a binding obligation of the Parties, 220 Ordinance No. 391 Page 29 (ii) this Agreement has not been amended, or if amended, the identity of each amendment, and (iii) the requesting Party is not in breach of this Agreement, or if in breach, a description of each such breach. The Party receiving such a request shall execute and return the certificate within thirty (30) days following receipt of the notice. City acknowledges that a certificate may be relied upon by successors in interest to the Developer who requested the certificate and by holders of record of deeds of trust on the portion of the Property in which that Developer has a legal interest. 14. Administration of Agreement. Any decision by City staff concerning the interpretation and administration of this Agreement and development of the Property in accordance herewith may be appealed by the Developer to the City Council, provided that any such appeal shall be filed with the City Clerk of City within ten (10) days after the affected Developer receives notice of the staff decision. The City Council shall render its decision to affirm, reverse or modify the staff decision within thirty (30) days after the appeal was filed. The Developer shall not seek judicial review of any staff decision without first having exhausted its remedies pursuant to this section. 15. Amendment or Termination by Mutual Consent. In accordance with the provisions of Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect, this Agreement may be amended or terminated, in whole or in part, by mutual consent of City and the affected Developer. 15.1. Exemption for Amendments of Project Approvals. No amendment to a Project Approval shall require an amendment to this Agreement and any such amendment shall be deemed to be incorporated into this Agreement at the time that the amendment becomes effective, provided that the amendment is consistent with this Agreement and does not alter the permitted uses, density, intensity, maximum height, size of buildings or reservations and dedications as contained in the Project Approvals. 160 Indemnification. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any and all losses, liabilities, fines, penalties, costs, claims, demands, damages, injuries or judgments arising out of, or resulting in any way from, Developer's performance pursuant to this Agreement. Developer shall indemnify, defend with counsel approved by City, and hold harmless City and its officers, employees and agents from and against any action or proceeding to attack, review, set aside, void or annul this Agreement, or any provision thereof, or any Project Approval or Subsequent Approval or modifications thereto, or any other subsequent entitlements for the project and including any related environmental approval. 221 Ordinance No. 391 Page 30 17. Time of Essence. Time is of the essence for each provision of this Agreement of which time is an element. 18. Operative Date. This Agreement shall become operative on the date the Enabling Ordinance becomes effective pursuant to Government Code Section 36937. 19. Term. This Agreement shall remain in full force and effect for a term of ten (10) years commencing on its operative date or until the close of escrow on the initial sale of the last Affordable Housing Unit required by Subsection 6.9, whichever occurs last, unless said term is amended or the Agreement is sooner terminated as otherwise provided herein. Upon notice in accordance with Subsection 20 below the Developer may notify City at least one hundred eighty (180) days in advance of the term of this Agreement that an additional term is necessary for the completion of the Project. City may, at its sole and unfettered discretion, extend the agreement for a term of not less than one (1) year and no more than ten (10) years. Said extension of the term of this Agreement may include the addition of any new fees which may be in effect at the time of the extension request. Expiration of the term or earlier termination of this Agreement shall not automatically affect any Project Approval or Subsequent Approval that has been granted or any right or obligation arising independently from such Project Approval or Subsequent Approval. Upon expiration of the term or earlier termination of this Agreement, the Parties shall execute any document reasonably requested by any Party to remove this Agreement from the public records as to the Property, and every portion thereof, to the extent permitted by applicable laws. 20. Notices. All notices and other communications given pursuant to this Agreement shall be in writing and shall be deemed received when personally delivered or upon the third (3rd) day after deposit in the United States mail, registered or certified, postage prepaid, return receipt requested, to the Parties at the addresses set forth in Exhibit "B" attached hereto and incorporated herein. Any Party may, from time to time, by written notice to the other, designate a different address which shall be substituted for the one above specified. 21. Entire Agreement. This Agreement and those exhibits and documents referenced herein contain the entire agreement between the Parties regarding the subject matter hereof, and all prior agreements or understandings, oral or written, are hereby merged herein. Where there is a conflict between this Agreement and the Development Agreement adopted by Ordinance No. 263 for the development of the Property, this Agreement shall prevail. This Agreement shall not be amended, except as expressly provided herein. 222 Ordinance No. 391 Page 31 22. Waiver. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar; nor shall any such waiver constitute a continuing or subsequent waiver of the same provision. No waiver shall be binding, unless it is executed in writing by a duly authorized representative of the Party against whom enforcement of the waiver is sought. 23. Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Agreement shall be effective to the extent the remaining provisions are not rendered impractical to perform, taking into consideration the purposes of this Agreement. 24. Relationship of the Parties. Each Party acknowledges that, in entering into and performing under this Agreement, it is acting as an independent entity and not as an agent of any of the other Parties in any respect. Nothing contained herein or in any document executed in connection herewith shall be construed as creating the relationship of partners, joint ventures or any other association of any kind or nature between City and Developer, jointly or severally. 25. No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of the Parties and their successors in interest. No other person shall have any right of action based upon any provision of this Agreement. 26. Recordation of Agreement and Amendments. This Agreement and any amendment thereof shall be recorded with the County Recorder of the County of Ventura by the City Clerk of City within the period required by Chapter 15.40 of the Moorpark Municipal Code of City or any successor thereof then in effect. 27. Cooperation Between City and Developer. City and Developer shall execute and deliver to the other all such other and further instruments and documents as may be necessary to carry out the purposes of this Agreement. 28. Rules of Construction. The captions and headings of the various sections and subsections of this Agreement are for convenience of reference only, and they shall not constitute a part of this Agreement for any other purpose or affect interpretation of the Agreement. Should any provision of this Agreement be found to be in conflict with any provision of the Project Approvals or the Subsequent Approvals, the provision of this Agreement shall prevail. Should any provision of the Implementation Plan be found to be in conflict with any provision of this Agreement, the provisions of the Implementation Plan shall prevail. 29. Joint Preparation. This Agreement shall be deemed to have been prepared jointly and equally by the Parties, and it shall not be construed against any Party on the ground that the Party prepared the Agreement or caused it to be prepared. 223 Ordinance No. 391 Page 32 30. Governing Law and Venue. This Agreement is made, entered into, and executed in the County of Ventura, California, and the laws of the State of California shall govern its interpretation and enforcement. Any action, suit or proceeding related to, or arising from, this Agreement shall be filed in the appropriate court having jurisdiction in the County of Ventura. 31. Attorneys' Fees. In the event any action, suit or proceeding is brought for the enforcement or declaration of any right or obligation pursuant to, or as a result of any alleged breach of, this Agreement, the prevailing Party shall be entitled to its reasonable attorneys' fees and litigation expenses and costs, and any judgment, order or decree rendered in such action, suit or proceeding shall include an award thereof. 32. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which constitute one and the same instrument. IN WITNESS WHEREOF, the Developer and City of Moorpark have executed this Development Agreement on the date first above written. CITY OF MOORPARK Janice S. Parvin Mayor OWNERIDEVELOPER PARDEE HOMES, a California corporation By: Amy L. Glad Senior Vice President By: James C. Bizzelle, III Vice President, Community Development ALL SIGNATURES MUST BE NOTARIZED 224 Ordinance No. 391 Page 33 EXHIBIT A LEGAL DESCRIPTION Lot 1 of Tract 5045-7, in the County of Ventura, Sate of California, According to map thereof recorded October 24, 2006 in book157 of Miscellaneous Records (maps) at Pages 4-6. 225 Ordinance No. 391 Page 34 EXHIBIT "B" ADDRESSES OF PARTIES To City: City of Moorpark 799 Moorpark Avenue Moorpark, CA 93021 Attn: City Manager To Developer: Pardee Homes James C. Bizzelle, III Vice President, Community Development 10880 Wilshire Boulevard, Suite 1900 Los Angeles, CA 90024 226